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

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.
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.
The plaintiff alleges that the first defendant did not perform the operation and did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rice v Ghabrial

Details

AGLC: Rice v Ghabrial [2016] NSWSC 313
Case: [2016] NSWSC 313
Decision Date: 22 March 2016

CaseChat Overview and Summary

In the case of Rice v Ghabrial, the plaintiff, Rice, commenced proceedings against the defendant, Ghabrial, in relation to an incident of alleged medical negligence. The plaintiff was unconscious during the alleged negligent act, and thus had no personal knowledge of the events that occurred in the operating theatre or the state of knowledge of the doctors involved. The defendant argued against the plaintiff’s application for interrogatories, asserting that the plaintiff could not demonstrate special reasons for the interrogatories, nor that they were necessary for the fair disposal of the proceeding. The matter was heard in the Supreme Court of New South Wales.

The court was required to consider the meaning of “necessary” and “special reasons” in the context of the Uniform Civil Procedure Rules (UCPR). The court needed to determine whether the interrogatories were necessary to assist in the fair disposal of the proceeding and whether the plaintiff had special reasons for the interrogatories. The court also needed to determine whether the plaintiff could provide evidence of the doctors’ state of knowledge, and whether this evidence was necessary for the fair disposal of the proceeding.

The court found that the interrogatories were necessary for the fair disposal of the proceeding. The court noted that the plaintiff was unable to provide evidence of the doctors’ state of knowledge, and that this information was necessary to determine whether the defendant was negligent. The court found that the plaintiff had special reasons for the interrogatories, as the plaintiff was unable to provide evidence of the doctors’ state of knowledge due to their unconsciousness during the alleged negligent act. The court ordered the interrogatories, finding that they were necessary for the fair disposal of the proceeding and that the plaintiff had special reasons for the interrogatories.

The court ordered that the defendant answer the interrogatories within 28 days of the order. The court further ordered that the defendant provide a copy of the answers to the interrogatories to the plaintiff within seven days of providing the answers to the court. The court did not make any other orders.

Orders