Liddell v Southern Area Health Service (No 2) - [2010] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
LIDDELL & ANOR v SOUTHERN AREA HEALTH SERVICE (No 2)
[2010] SASC 270
Reasons of Judge Lunn a Master of the Supreme Court
27 August 2010
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Particulars - whether 87R 46A.03(b) can require a plaintiff to plead evidence as distinct from a cause of action to give the defendant fair notice of the case it has to answer - particulars ordered.
Coonawarra Premium Vineyards Pty Ltd v Nugan Group Pty Ltd [2006] SASC 5, applied.
H Stanke & Sons Pty Ltd v O’Meara (2007) 98 SASR 450, discussed.

LIDDELL & ANOR v SOUTHERN AREA HEALTH SERVICE (No 2)
[2010] SASC 270
JUDGE LUNN:
Reasons on defendant’s application for further particulars

In this action the plaintiffs sue for damages for medical negligence by the defendant. The action was commenced in the District Court in 2004. It was transferred to this Court by an order of Bleby J made on 20 January 2010. It was accepted that it is still governed by the repealed 1987 Rules.
By an application taken out on 9 July 2010, FDN13, the defendant seeks an order for further particulars. The basis for the application appears in the following correspondence between the solicitors for the parties.
On 1 June 2010 the plaintiffs’ solicitor wrote to the defendant’s solicitors:
The plaintiffs do not intend to amend the Statement of Claim to include any specific allegation in relation to the destruction or loss of documents by the defendant, nor to provide the particulars sought in your letter.
Nevertheless we put you on notice that at the hearing the plaintiffs will seek to rely upon an evidentiary presumption in respect of electrocardiographic records, continuous oxygen saturation records, blood pressure records and a cardiac arrest flow sheet documenting the changes in the condition of the first plaintiff, her vital signs, heart rhythm, the precise doses and timing of resuscitation drugs, defibrillation and CPR on a minute-by-minute basis, documenting events as they unfolded from the time of the first plaintiff’s cardiac arrest at about 2.20 am on 6 July 2001 for the duration of the emergency. The circumstances suggesting that such records should have been created are those referred to in the report of Dr David Cooper of 12 April 2008 at pp 16-18.
The plaintiffs will, if the following preconditions are made out, ask the Court to infer that the documents in question would not have assisted the defendant’s case.
The preconditions we refer to are the following:
(a) That the Court is satisfied that in the ordinary course such records would be expected to be created; and
(b) That the Court is satisfied that there is no satisfactory explanation from the defendant as to why in this particular case such records were not created or alternatively as to why they were not preserved.
Because the plaintiffs will only be seeking to rely upon an evidentiary presumption, if the Court concludes that the preconditions have been satisfied, there is no necessity for the plaintiffs to plead the presumption. The general basis for the proposition that the unexplained failure to produce particular material may in appropriate circumstances lead to an inference that the missing material would not have assisted that party’s case can be found in authorities such as Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-1, and Brandi v Mingot (1976) 12 ALR 551 at 559-60.
On 11 June 2010 the defendant’s solicitors replied:
I request that within 14 days you provide me with an open letter stating without reservation or qualification that the plaintiffs will not at trial invite the Court to draw inferences adverse to the defendant’s case from the absence of what you have alleged are critical medical records in the documents discovered by the defendant. I request that the open letter disavow any suggestion that there has been any deliberate act on the part of the defendant, its servants or agents to destroy or otherwise put discoverable documents beyond the reach of the plaintiffs in this action.
If you are not prepared to provide such a letter, I request that you confirm, within 14 days, that the plaintiffs will apply to amend the Statement of Claim to plead the case that they propose to make at trial about the absence of medical records in the documents discovered by the defendant and to provide the particulars sought in my letter to you dated 25 February 2010.
On 18 June 2010 the plaintiffs’ solicitors responded:
We confirm that the plaintiffs will not at trial pursue an allegation that there has been a deliberate act on the part of the defendant, its servants or agents to destroy or otherwise put discoverable documents beyond the reach of the plaintiffs in this action. However, as set out in our letter dated 1 June 2010, the plaintiffs will invite the Court to drawn[sic] inferences adverse to the defendant’s case if the preconditions as set out in that letter are satisfied.
We confirm that, with respect, the type of inference that is sought to be drawn does not require an amendment to the Statement of Claim.
What the plaintiffs have foreshadowed is a matter of evidence. It is not part of the pleading of their causes of action. The defendant seeks its order under 87R 46A.03(b) which requires the plaintiffs to plead:
(b)such further material facts as are necessary to give the other parties fair notice of the case which they will have to answer.
It is not an answer to the application that the material sought by the defendant is contained in expert medical reports served by the plaintiffs.[1] Since publication of my reasons No. 1, the plaintiffs have abandoned their reliance on the presumption of spoilation, but still contend that inferences are to be drawn in their favour on issues about their causes of action from the absence of certain records apparently not kept by the defendant.
[1] Coonawarra Premium Vineyards Pty Ltd v Nugan Group Pty Ltd Lunn M, 18 January 2006, [2006] SASC 5 at [15].
I stated in my reasons published on 14 December 2009:
6 … It seems the scope of subr (b) is to be determined by what is required for there to be a fair trial, including any interlocutory steps which are related to the issues pleaded under subr (b): H Stanke & Sons Pty Ltd v O’Meara (2007) 98 SASR 450 particularly at [85]. Although it is not necessary for me to decide it, I favour the view that an issue about proof by a “presumption” from spoilation should be pleaded under 87R 46A.03(b).
7 Counsel for the plaintiffs responded that proper notice of the point would be given to the defendant from the experts’ reports served by the plaintiffs. I do not accept this. While 87R 46A.10(2)(b) allows the trial Judge to have regard to experts’ reports in deciding what evidence can be adduced at the trial outside of the pleadings, at the interlocutory stage of the action the delivery of experts’ reports is not usually to be accepted as a substitute for proper pleadings.
The issues of what were pleadable, and not to be pleaded, under 87R 47A.03(b) were considered by the Full Court in H Stanke & Sons Pty Ltd v O’Meara[2] (“Stanke’s case”). There the Full Court held that a mere plea of evidence was barred by 87R 46A.02(b) and was not justified merely by reference to 87R 46A.03(b).[3] However, at [115]-[117] they dealt with a plea of similar fact evidence in the following passage:
[2] (2007) 98 SASR 450.
[3] [105] and [123]-[125].
Paragraph 33.7
[115] Paragraph 33 of the ASC pleads that within the period between about March 1953 and April 1965 Fred, and certain of his brothers, became the holder of the legal title of other land in Carpenters Rocks adjacent and proximate to the Base Block with a view to such land being used in conjunction with the Base Block in the Family Business.
[116] By paragraph 33 of the AD, the second defendant admits that Fred, his brothers and his father became the holders of the legal title to certain other land at Carpenters Rocks. In subparagraphs 33.1-33.10 inclusive, the second defendant identifies the various parcels of land, and in some cases, pleads subsequent changes in the ownership of interests in that land. The plaintiffs' complaint concerns subparagraph 33.7. That plea is as follows:
33.7 On 24 May 1963, Hercules, Fred, Bob and Jack purchased and became the registered proprietors of the legal estate in the whole of the land comprised in Certificate of Title Register Book Volume 3167 Folio 139 and identified as section 501 (s 501) as tenants-in-common;
33.7.1Following Hercules' death on 26 August 1965, Fred as executor of Hercules' Will dated 9 November 1964, probate [of] which was granted on 28 February 1968, transferred Hercules' beneficial interest in the land registered in Hercules' name equally amongst himself, Bob and Jack on 30 August 1972 in accordance with Hercules' Will;
33.7.2In 1987 and 1988, Mrs O'Meara wished to build a house on a portion of s 501 and to be the legal and beneficial owner of her house block. Fred agreed to implement the partition of s 501 into three allotments to facilitate the fulfilment of Mrs O'Meara's wish;
33.7.3Bob and Jack agreed with Fred's proposal;
33.7.4On 13 January 1988, at Fred, Jack and Bob's request, s 501 was divided into three separate parcels of land comprised in Certificate of Title Register Book Volume 5444 Folio 566 ("allotment 1"), Certificate of Title Register Book Volume 5258 Folio 561 ("allotment 2") and Certificate of Title Register Book Volume 5444 Folio 565 ("allotment 3").
33.7.5On 27 July 1988:
33.7.5.1allotment 1 was transferred by Fred, Bob and Jack as tenants-in-common to Bob as sole proprietor;
33.7.5.2allotment 2 was transferred by Fred, Bob and Jack as tenants-in-common to Mrs O'Meara as sole proprietor. Fred in effect gave his share of s 501, being allotment 2, to Mrs O'Meara;
33.7.5.3allotment 3 was transferred by Fred, Bob and Jack to Jack as sole proprietor.
[117] The plaintiffs make no claim with respect to the s 501 land to which subparagraph 33.7 refers. Accordingly, the plaintiffs submitted that paragraph 33.7, being a plea in relation to land which was not in issue, was in the nature of a plea of evidence. We are unable to accept that submission. A plea concerning the conduct of Fred in relation to non-disputed land is capable of being a plea of a material fact giving fair notice of the second defendant's case in relation to the disputed land. That is particularly so given the plaintiffs' pleadings concerning the adoption of the Assumption, and the pleadings concerning the family members having acted in accordance with that Assumption. Fred's conduct in relation to the s 501 land is capable of being very relevant to the matters in issue.
[118] We would dismiss the appeal with respect to subparagraph 33.7.
The evidence relating to the s 501 land was only material there because of inferences which could be drawn from it on a process of similar fact reasoning. It was not part of the pleading of the causes of action. Its pleading could only be justified on the basis that it was a plea necessary to give the other parties fair notice of the case which they would have to answer at trial. There were significant issues of discovery of documents related to that plea about s 501. By reason of that plea the other parties would have been expected to have their evidence ready to be led at trial to meet the similar fact contentions. Thus, in my view, Stanke’s case is authority that at least in some instances as a matter of discretion the Court will permit a pleading of evidence under 87R 46A.03 where it is necessary for the fair trial of the action. If the similar fact evidence had not been pleaded, documents relating to it would not have been discoverable as directly relevant documents, as their admissibility would have been dependent and contingent on the Court accepting the similar fact argument about what was directly in issue on the pleadings. Had this pleading had not been put forward, it may have disrupted the trial if the other parties were taken by surprise and had not obtained relevant documents and investigated the evidence available to them on the topic.
The matters raised in the correspondence quoted above have the potential to be quite significant at the trial of this action. The plaintiffs need to make it explicit what records they say the defendant should have kept from which they will seek to draw the alleged inferences. The defendant should be required to plead whether it kept such records or not. If it did not keep the records, the plaintiffs will apparently plead at least in respect of some categories that it was proper practice for them to have done so. The defendant needs to be on notice about precisely what it is alleged it should have done, but did not do. Such issues raised on the pleadings are likely to lead to significant discovery of documents being required under 87R 58A.04 and expert reports and other evidence being obtained and available at the trial. If these matters are not properly pleaded, there is a likelihood that the trial will be disrupted, and possibly significantly lengthened.
Accordingly, in general terms I am prepared to order the plaintiffs to give particulars of the type sought. However, the application is in terms of interrogatories and a request for documents rather than identifying the topics on which the particulars are required. I will hear the parties further on the form of the order to be made.