McGarry v Southern NSW Local Health Network (No 2)

[2013] NSWSC 1110

Supreme Court

New South Wales

Medium Neutral Citation:

McGarry v Southern NSW Local Health Network (No 2) [2013] NSWSC 1110

Hearing dates:

13 August 2013

Decision date:

13 August 2013

Before:

Adamson J

Decision:

(1) I order the second defendant to answer interrogatories 1, 2, 3, 5 and 6 in MFI 2 within 28 days hereof.

(2) I make no order as to the costs of the plaintiff's notice of motion filed 22 July 2013.

Catchwords:

PRACTICE AND PROCEDURE - application for interrogatories - special reason for interrogatories

Legislation Cited:

- Uniform Civil Procedure Rules 2005, r 21.1(4)

Category:

Interlocutory applications

Parties:

Jennifer Henriette Jacqueline McGarry (Plaintiff)
Southern NSW Local Health Network (First Defendant)
Matthew Nott (Second Defendant)

Representation:

Counsel: S Blount (Plaintiff)
No appearance for the First Defendant
MJ Fordham SC (Second Defendant)
Solicitors: Commins Hendriks (Plaintiff)
Curwoods Legal Services (Second Defendant)

File Number(s):

2011/106378

Publication restriction:

Nil

Judgment

Introduction

1. The plaintiff commenced proceedings in the District Court on 31 March 2011 for damages arising from the alleged negligence of the Southern NSW Local Health Network (the first defendant) and Dr Matthew Nott (the second defendant) arising from a hip replacement operation which was performed on 31 August 2010. The proceedings were subsequently transferred to this Court.

1. The plaintiff alleged that while the second defendant was performing the operation, an instrument known as a reamer broach, which he was using to enlarge the femoral cavity, snapped, with the result that it became imbedded in the plaintiff's right femur. In order to extract the reamer broach it was necessary for the plaintiff's thighbone to be split. The word "reamer" in this context is a tool used to enlarge a hole or cavity and "broach" is a pointed rod.

1. It is sufficient for present purposes to know that a hip replacement operation requires the femoral cavity to be enlarged so that it can accommodate the artificial hip joint. A reamer broach is one of the tools used for this purpose.

1. On 13 August 2013 I granted leave to the plaintiff to file a further amended statement of claim which joined Stryker Australia Pty Limited (Stryker), the manufacturer of the reamer broach.

Application for interrogatories

1. The plaintiff, by notice of motion filed on 22 July 2013, seeks that the second defendant provide answers to interrogatories. These interrogatories have been modified since the filing of this notice of motion and are now contained in a document which I have marked for identification MFI 2 and placed with the papers.

1. The notice of motion is supported by an affidavit of Geoffrey John Potter of 25 July 2013. Interrogatories 1, 2 and 3 are consented to and interrogatory 4 is not pressed.

1. Two interrogatories remain in issue:

Q5. How did the second defendant attempt to remove the reamer broach stuck in the plaintiff's femur?

Q6. How did the second defendant eventually remove the reamer broach from the plaintiff's femur?

1. The second defendant opposed answering those interrogatories on the grounds that there is no allegation of negligence associated with his removal of the reamer broach from the plaintiff's femur. Mr Fordham, who appears on behalf of the second defendant, submitted that the answers to those interrogatories would not in these circumstances amount to admissions against the second defendant.

1. I am not to order interrogatories unless I am satisfied that such order is necessary at the time it is made: UCPR 21.1(4).

1. I do not consider that Mr Fordham's submissions give sufficient weight to the forensic purpose of interrogatories, which is not confined to making admissions. Interrogatories are of particular importance in cases such as the instant where a plaintiff was undergoing a surgical operation under a general anaesthetic at the time at which she suffered injury. The method adopted by the surgeon and what occurred in the course of the operation are matters within the knowledge of the surgeon and the hospital through its operating staff. Although relevant matters are generally recorded in hospital records which are available to the plaintiff through the processes of the Court, there may be matters which are not recorded which are nonetheless germane to the plaintiff's claim, either against the party from whom the answers to interrogatories are sought, or against another party.

1. I am satisfied that, although the hospital report of the plaintiff's operation provides relevant information about what occurred, the disputed interrogatories are nonetheless necessary in order for the plaintiff to know the primary facts associated with her operation. The plaintiff is entitled in my opinion to have the basic facts which interrogatories 5 and 6 would elicit. These facts are germane to her claim against the second defendant, at least by way of background, although they do not form the basis of a specific allegation of negligence. Answers to the disputed interrogatories might also assist her to pursue her claim against Stryker, which has been joined to the proceedings as the third defendant by an order I made today.

1. I consider that the circumstances of the operation provide a special reason for interrogatories to be ordered and that they are necessary. In my view, the ambit of interrogatories 5 and 6 is no wider than necessary to fulfil the forensic purpose of enabling the plaintiff to be informed as to the objective facts surrounding her surgical procedure.

Orders

1. I make the following orders:

(1)   I order the second defendant to answer interrogatories 1, 2, 3, 5 and 6 in MFI 2 within 28 days hereof.

(2)   I make no order as to the costs of the plaintiff's notice of motion filed 22 July 2013.

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Decision last updated: 14 August 2013