Rice v Ghabrial

[2016] NSWSC 313

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Rice v Ghabrial [2016] NSWSC 313

Hearing dates:

24 June 2015

Date of orders:

22 March 2016

Decision date:

22 March 2016

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to r 22.1 of the Uniform Civil Procedural Rules 2005, the plaintiff be granted leave to administer interrogatories to the first, second and third defendants.

 

(2)   The first defendant, within twenty one (21) days, is to provide verified answers to interrogatories in the form of the draft interrogatories marked “A” annexed to the notice of motion of the plaintiff filed 7 May 2015.

 

(3)   The second defendant, within twenty one (21) days, is to provide verified answers to interrogatories in the form of the draft interrogatories marked “B” annexed to the plaintiff’s notice of motion filed 7 May 2015.

 

(4)   The third defendant, within twenty one (21) days, is to provide verified answers to interrogatories in the form of the draft interrogatories marked “C” annexed to the plaintiff’s notice of motion of filed 7 May 2015.

 (5)   The defendants pay the plaintiff’s costs of and incidental to the motion, as agreed or assessed.

Catchwords:

PRACTICE AND PROCEDURE – interrogatories – medical negligence suit in which the plaintiff has no knowledge of the events in the operating theatre and the state of knowledge of each doctor – allegations that doctor thought to be performing operation did not – meaning of “necessary” in UCPR – meaning of “special reasons” in UCPR – interrogatories ordered.

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedural Rules 2005

Cases Cited:

Chong v Nguyen [2005] NSWSC 588
Keating v South East Sydney Illawarra Area Health Service (Supreme Court (NSW), Hall J, 7 July 2006, unrep)

Category:

Procedural and other rulings

Parties:

Sally Rice (Plaintiff)
Professor Youssef Ghabrial (First Defendant)
Dr Pankaj Rao (Second Defendant)
Dr David Dewar (Third Defendant)

Representation:

Counsel:
E G Romaniuk SC/M A Kumar (Plaintiff)
S M Kettle (Defendants)

  Solicitors:
Leitch Hasson & Dent Lawyers (Plaintiff)
Hicksons Lawyers (Defendants)

File Number(s):

2012/345615

Judgment

1. HIS HONOUR: By notice of motion filed 7 May 2015 the plaintiff, Sally Rice, seeks orders pursuant to the Uniform Civil Procedural Rules 2005 (UCPR) r 22.1 to be granted leave to administer interrogatories. Leave is necessary because these are proceedings on a common law claim for damages arising out of bodily injury to a person.

2. The substantive proceedings relate to a claim for injury arising out of what is alleged to be medical negligence. The circumstances alleged by the plaintiff are that the plaintiff was a patient, admitted into the care of the defendants in circumstances where the defendants performed a total knee replacement to the plaintiff’s left knee (the operation) and provided post-operative medical services. The plaintiff was under the understanding that the first defendant was to perform the operation. It was, according to the plaintiff, the first defendant who was consulted.

3. The plaintiff alleges that the first defendant did not perform the operation and did not supervise the second or third defendant performing the operation.

4. For obvious reasons the plaintiff is unaware of what occurred in the operating theatre. The knee has not, according to the plaintiff, improved or improved to the state that it should have if the operation were done appropriately.

5. As earlier stated, interrogatories are sought and opposed.

Principles

6. The issue of interrogatories is governed by the rules and generally requires that the interrogatories be “necessary”. In the case of personal injury matters, the rules also require that there be “special reasons” for the administering of the interrogatories.

7. These matters were dealt with by the Court, as presently constituted in Chong v Nguyen [2005] NSWSC 588. In Chong, the Court said:

“12    There has been some debate about the requirement for the question to be ‘necessary’. Most often reference is made to Boyle v Downs [1979] 1 NSWLR 192 at 204-5. The Court (Cross J) there confirmed that the word ‘necessary’ was to be interpreted as meaning ‘necessary for a fair trial’.

His Honour said:

‘In considering the meaning of the word “necessary” in Part 23 Rule 14 – a rule relating to discovery and inspection similar to Rule 5 in Part 24 relating to interrogatories – Rath J in Percy v General Motors-Holden’s Pty Ltd [1975] 1 NSWLR 289 interpreted it as “necessary in the interests of a fair trial”. This definition is similar to the one I have suggested; for in Griebart v Morris [1920] 1 KB 659, Scrutton LJ interpreted “necessary for disposing fairly of the cause or matter” (under the English rules relating to interrogatories) as “necessary for the fair trial of the action”.’

13    The Court of Appeal has referred with authority to that passage in Schutt v Queenan [2000] NSWCA 341 at [11], [12], [13], [14] and [15]. His Honour the President said:

‘The answers which are sought are material in the sense that they may enable the claimant either to maintain her own case or to destroy the case put against her’ (see Griebart v Morris [1920] 1 KB 659 at 664).

14    While other views have been expressed at various levels of the judicial hierarchy, the overwhelming authoritative view is that the Court must be satisfied that the order is ‘necessary in the interests of a fair trial’.

15    It is, in this case, essential in light of the arguments pressed, to examine the meaning of the word ‘necessary’ in that context.

16    The word ‘necessary’ when used in relation to a requirement on the exercise of a power granted to a court should generally and does here mean ‘reasonably required or legally ancillary’ to the achievement of the goal, in this case, of a fair trial. I refer to the joint judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 which, while determining whether there was a valid basis for contempt proceedings, examined the power of the District Court to issue injunctive relief. They said:

‘The term “necessary” in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker (1849) 3 Ex 242, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Division 4 of Part 3 of the District Court Act. In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness” (State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 477 at 452).’ (my emphasis)”

8. Thus, in the context of UCPR r 22.1, the plaintiff must satisfy the Court that interrogatories are “reasonably required or legally ancillary” to the achievement of the goal, in this case, of a fair trial. In that sense, the word “necessary” in the relevant rule of the Court does not require that the order is “essential”.

9. Further, by operation of UCPR r 22.1(3), the Court is not to make such an order unless it is satisfied that “special reasons exist that justify the making of the order”.

10. A purposive construction of the above rule should be given. The purpose of requiring the Court to be satisfied of “special reasons” is to ensure that interrogatories in personal injury matters are not the ordinary course and to restrict the circumstances in which a Court will order interrogatories. As explained by Hall J in Keating v South East Sydney Illawarra Area Health Service (Supreme Court (NSW), Hall J, 7 July 2006, unrep at [24]-[25]), one relevant but not necessarily determinative criterion is the availability of the evidence otherwise.

11. The term “special” has been defined in a number of ways. The Macquarie Dictionary defines the term as “relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional”. In a somewhat circular fashion the aforesaid dictionary defines “exceptional” as “special” and the Oxford English Dictionary defines the term “exceptional” as “of the nature of or forming an exception; out of the ordinary course; unusual, special”.

12. It would seem on the basis of the foregoing and given the context in which the Court is required to be satisfied of special reasons, the UCPR provide that the Court must be satisfied that the basis for the issue of the interrogatories is unusual or out of the ordinary in the context of the class of personal injury actions.

13. I approach the exercise of my discretion with that test in mind and in the context of the provisions of s 56 of the Civil Procedure Act 2005 and following, namely, the achievement of an outcome that facilitates the quick, cheap and just resolution of the real issues in dispute between the parties.

Application of the principles

14. The interrogatories to the respective defendants fall into categories that are easily described. In the first category are questions relating to the prior knowledge, experience and training of the defendants and their knowledge of the training and experience of the other defendants. This is particularly an apt description in relation to the interrogatories relating to the first defendant (See Draft Interrogatories A: Questions 1a, 1b, 1c, 2a, 2b, 2c, 2d, 2e, 2f, 2g, 3a, 3b, 3c, 3d, 12c (to some extent); Draft Interrogatories B: Questions 1a, 1b, 1c, 2a, 2b, 2c, 2d, 2e, 2f, 2g, 3a, 3b, 3c, 3d, 5e, 12c (to some extent); Interrogatories C: Questions 1a, 1b, 1c, 2a, 2b, 2c, 2d, 2e, 2f, 2g, 3a, 3b, 3c, 3d, 12c (to some extent)).

15. The second category of interrogatories relates to the effect, if any, of the knowledge disclosed by the answer to the first set of interrogatories (See Draft Interrogatories A: Questions 4a, 4b, 5a, 5b, 5d, 5e; Draft Interrogatories B: Questions 4a, 4b, 5a, 5b, 5d; Draft Interrogatories C: Questions 4a, 4b, 5a, 5b, 5d, 5e).

16. The third set of interrogatories relates to the steps taken by the first defendant to introduce the plaintiff to the other defendants and/or advise the plaintiff that it was the other defendants, or one of them, that would be performing the operation, or to warn the plaintiff of risks (See Draft Interrogatories A: Questions 6a, 6b, 6c, 6d, 8a, 8b, 8c, 8d, 9, 10; Draft Interrogatories B: Questions 6a, 6b, 6c, 6d, 8a, 8b, 8c, 8d, 9, 10; Draft Interrogatories C: Questions 6a, 6b, 6c, 6d, 8a, 8b, 8c, 8d, 9, 10).

17. The fourth class of interrogatories seek greater particularity as to the role of each of the defendants in the operation (See Draft Interrogatories A: Questions 7, 8e, 8f, 8g, 11a, 11b, 11c, 12a, 12b, 12c (to some extent), 13a, 13b, 13c, 14a, 14b; Draft Interrogatories B: Questions 7, 8e, 8f, 8g, 11a, 11b, 11c, 12a, 12b, 12c (to some extent), 13a, 13b, 13c; Interrogatories C: Questions 7, 8e, 8f, 8g, 11a, 11b, 11c, 12a, 12b, 12c (to some extent), 13a, 13b, 13c).

18. Lastly, the interrogatories relate to other details of the operation, including the prosthetic device or equipment used (See Draft Interrogatories A: Question 5c; Draft Interrogatories B: Question 5c; Draft Interrogatories C: Question 5c).

19. The interrogatories as to the second and third defendants are the corollary to the interrogatories to the first defendant. They seek questions as to the defendants’ knowledge of the role and the expectation of the role of the first defendant and the degree to which each of the defendants had completed training and had experience in undertaking or performing the operation in question. Further, the interrogatories seek answers to questions to the second and third defendants, respectively, as to their knowledge of the qualifications and experience of the third and second defendants.

20. These are questions that go to the state of knowledge of the first, second and third defendants which are necessarily relevant to the statement of claim and the allegations made by the plaintiff in the proceedings and those matters put in issue by the defendants in their defence. Further, they seek particulars of that which occurred in the operation, which would be unknown to the plaintiff.

21. Lastly, the various requests for particulars seek in particular, the understanding of each of the defendants as to how the operation was intended to be performed and the state of knowledge of each of them as to the capacity of each other defendant to perform the operation and the role of each of defendant in the operation.

22. All of these matters are matters that are beyond the knowledge of the plaintiff, are necessary for the plaintiff’s case and would be unable to be obtained other than by the administering of interrogatories of the kind here suggested.

23. The interrogatories that are sought are necessary, as defined above, and there are special reasons for the administering of those interrogatories. Those special reasons include the difficulty, if not impossibility, of obtaining that information otherwise than through the administering of interrogatories and the importance of the issues between the parties.

24. The Court makes the following orders:

1. Pursuant to r 22.1 of the Uniform Civil Procedural Rules 2005, the plaintiff be granted leave to administer interrogatories to the first, second and third defendants.

2. The first defendant, within twenty one (21) days, is to provide verified answers to interrogatories in the form of the draft interrogatories marked “A” annexed to the notice of motion of the plaintiff filed 7 May 2015.

3. The second defendant, within twenty one (21) days, is to provide verified answers to interrogatories in the form of the draft interrogatories marked “B” annexed to the plaintiff’s notice of motion filed 7 May 2015.

4. The third defendant, within twenty one (21) days, is to provide verified answers to interrogatories in the form of the draft interrogatories marked “C” annexed to the plaintiff’s notice of motion of filed 7 May 2015.

5. The defendants pay the plaintiff’s costs of and incidental to the motion, as agreed or assessed.

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Amendments

13 September 2016 - Cover sheet: Change of hearing date.

Decision last updated: 13 September 2016