Rice v Ghabrial (No. 2) - [2016] NSWSC 1449

Supreme Court

New South Wales

Medium Neutral Citation: Rice v Ghabrial (No. 2) [2016] NSWSC 1449
Hearing dates: 11 October 2016
Date of orders: 11 October 2016
Decision date: 11 October 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the plaintiff’s notice of motion filed on 14 June 2016.
(2) Order the plaintiff to pay the first and second defendants’ costs of the motion.

Catchwords: PRACTICE AND PROCEDURE – notice of motion seeking leave to administer further interrogatories –medical negligence proceedings – claim for damages arising out of bodily injury – whether it is in the interests of justice to administer further interrogatories – no need for further interrogatories – plaintiff can achieve forensic purpose by more suitable measures – motion dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60
Evidence Act 1995 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 17.3, 22.1
Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Rice v Ghabrial [2016] NSWSC 313
Category: Procedural and other rulings
Parties: Sally Rice (Plaintiff)
Youssef Ghabrial (First Defendant)
Panjak Rao (Second Defendant)
David Dewar (Third Defendant)
Representation:
Counsel:
EG Romaniuk SC/MA Kumar (Plaintiff)
S Kettle (Defendants)
Solicitors:
Leitch Hasson & Dent Lawyers (Plaintiff)
Hicksons Lawyers (Defendants)

File Number(s): 2012/345615

Judgment

Introduction

By notice of motion filed on 14 June 2016, Sally Rice (the plaintiff) seeks leave to administer further interrogatories to Professor Youssef Ghabrial (the first defendant) and Dr Pankaj Rao (the second defendant) (referred to collectively as the defendants).
The plaintiff previously sought leave to administer interrogatories by a notice of motion filed on 7 May 2015. Leave was granted by Rothman J on 22 March 2016: Rice v Ghabrial [2016] NSWSC 313. Having reviewed the answers, the plaintiff contended that she required further interrogatories and that leave to administer further interrogatories would be in the interests of justice.

The plaintiff’s case

The plaintiff claims damages for alleged negligence associated with a knee replacement operation performed on 29 October 2007 by the second defendant and Dr David Dewar (the third defendant), under the remote supervision of the first defendant at a hospital known as the Royal Newcastle Centre. The particulars of negligence are not confined to the surgical procedure itself but extend to the post-operative care and other matters.
The plaintiff’s case is, relevantly, that:

Although she consulted with the first defendant, the operation was neither performed nor directly supervised by him.

At the time of the operation, the second defendant had not obtained his qualification as an orthopaedic surgeon from the Royal Australian College of Surgeons (the College) and had failed a number of exams in the course of his medical training which indicated that he was not capable of performing the operation to an acceptable standard unless directly supervised by someone of the qualifications and experience of the first defendant.

Prior to the plaintiff’s operation, the second defendant had inserted a prosthetic device known as a B Braun Colombus device (the device inserted into…

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 (No. 2)

Details

AGLC: Rice v Ghabrial (No. 2) [2016] NSWSC 1449
Case: [2016] NSWSC 1449
Decision Date: 11 October 2016

CaseChat Overview and Summary

The court was asked to decide a matter concerning a notice of motion seeking leave to administer further interrogatories in a medical negligence case. The plaintiff, Rice, sought damages arising from bodily injury against the defendant, Ghabrial. The primary issue was whether it was in the interests of justice to allow the plaintiff to administer further interrogatories. The court needed to assess if additional interrogatories were necessary or if the plaintiff could achieve the desired forensic outcome through other means.

The court examined the case's progress and the existing information available to the parties. It noted that the plaintiff had already received responses to numerous interrogatories and had access to various documents. The court concluded that the plaintiff could achieve the desired forensic purpose through more suitable measures, such as analysing the existing information or applying for further discovery. As a result, the court found that administering further interrogatories was not necessary in the interests of justice.

Consequently, the motion was dismissed. The court held that the plaintiff had sufficient means to achieve the desired forensic outcome without the need for additional interrogatories. This decision highlights the importance of ensuring that procedural applications align with the overarching goal of achieving justice in an efficient and effective manner. The court's ruling emphasised the need for parties to make the most of available information and resources before seeking further interrogatories.

Orders