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

1. 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).

2. 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

3. 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.

4. The plaintiff’s case is, relevantly, that:

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

2. 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.

3. 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 the plaintiff’s knee) only three times without supervision.

4. Even if the second and third defendants performed the operation to the best of their ability, their standard of competence did not reach the standard required of the defendants to discharge the duty of care they owed to the plaintiff.

5. The plaintiff has served an expert report of Dr Robin Higgs dated 6 February 2015, which forms the basis of her case against the defendants. It contains the following passages:

“[5.8] . . . My review of the documents that have been recorded by the Royal Australasian College of Surgeons has caused me to form the conclusion that Dr Rao did experience some considerable difficulty with regard to achieving a pass in the Part 1 of his FRACS (Orthopaedics) examination. It can be confirmed that Dr Rao failed his primary examination (Part 1) on or about eight occasions. It is evident that Dr Rao was eventually successful in the Part 1 examination. It is however evident that Dr Rao did then subsequently experience further difficulty with regard to achieving qualifications in the Royal Australasian College of Surgeons Part 2 examination. As far as can be determined, at the time of the surgery that was performed on or about 29/10/09, Dr Rao had not yet achieved a satisfactory pass mark in the Part 2 Fellowship examination of the College of Surgeons.

. . .

[13.1.1] . . . My consideration of the evidence has caused me to form the conclusion that the surgical procedure that was performed for Rice on or about 20/10/07 [sic] has not (my emphasis) been undertaken in a manner that accorded with that manner to be expected of a reasonably competent Surgeon performing such a procedure, at the time that the surgical procedure was performed. My review of the documentary evidence has not permitted me to be able to confirm as to whether or not any pre-operative planning procedure was undertaken by any of the Surgeons involved. It is further evident, from a review of the post-operative x-rays, that the insertion of the TKR prosthetic devices was associated with mal-positioning of the prosthetic implant components. The femoral and tibial components have been implanted in a varus position that measures [approximately] 10º. There is evidence also to support a conclusion that the femoral component was also implanted in a position of mal-rotation that was associated also with internal rotation.

…

[13.1.2] . . . My review of Dr Rao’s academic progress has caused me to form the conclusion that Professor Ghabrial should have been present throughout the operation. It is clearly evident that Dr Rao has experienced considerable difficulty with regard to achieving Fellowship of the Royal Australasia College of Surgeons. At the time of the surgical procedure Dr Rao had not been successful at the second part of the Fellowship Examination. This fact should have been known to Professor Ghabrial. It is clearly evident [to me] that the Royal College of Surgeons had determined that Dr Rao was not fit to perform orthopaedic surgery without supervision.

. . .”

The first set of interrogatories

6. As referred to above, Rothman J granted leave to the plaintiff to administer interrogatories on the defendants. The topics covered by the first set of interrogatories included: the prior knowledge and experience of the defendants; the effect of that knowledge and experience; and the role of each defendant in the plaintiff’s operation and care.

7. Verified answers to interrogatories were filed on 14 April 2016 pursuant to Rothman J’s orders. An amended statement of claim filed on 5 June 2015 drew substantially on admissions made in the answers to interrogatories, including that the first defendant was not present during the operation on the plaintiff and that he did not physically supervise the installation of the device.

The matters revealed by procedural inquiries

8. As a result of: the pleadings; the answers to the first set of interrogatories; responses to notices to admit facts; and documents produced on subpoena, the following matters emerged.

9. The defendants were all employees of the Hunter New England Local Health District which managed the Royal Newcastle Centre. They are represented by the same solicitors.

10. The first defendant was the Head of Training and Head of Surgery at the hospital where the operation was performed. The second defendant trained under the supervision of the first defendant from 1998 to 2008 who was, accordingly, aware of “all aspects of Dr Rao’s training, performance and qualifications” (First Defendants Answers to Interrogatories, 2(g)). He supervised the second defendant on many occasions.

11. The second defendant passed the first component of his specialty fellowship assessment as an orthopaedic surgeon in 2004. To the knowledge of the first defendant, the second defendant failed the second component of that fellowship assessment in May 2007 and again in September 2007. As at the date of the operation the second defendant had completed three years of his orthopaedic training and had three months to go to complete the orthopaedic training programme, which he completed at the end of January 2008.

12. At the time of the operation on 29 October 2007, the first defendant was not in the operating theatre at any time but was one floor away and was physically available in the hospital to attend the surgery if called upon. The operation was performed 80% by the second defendant and 20% by the third defendant. Prior to this operation, the second defendant had installed an identical device three times without supervision and seven times under direct supervision.

13. The second defendant’s academic record (as evident from documents produced by the College) indicates that he failed various subjects and had to re-take certain examinations, including in his basic training. The second defendant did not pass his final College exam (the second component of his specialty fellowship assessment) until 2009.

The relevant rules and legal principles

14. Rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevantly provides:

“Interrogatories

(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.

(2) An application for such an order must be accompanied by a copy of the proposed interrogatories.

(3) In the case of proceedings on:

(a) a claim for damages arising out of the death of, or bodily injury to, any person, or

. . .

such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.”

. . .

15. Part 6 of the Civil Procedure Act 2005 (NSW) applies and requires the matters set out in the part to be taken into account in the decision whether to grant leave to the plaintiff to administer a second set of interrogatories on the first and second defendants. Such matters include the overriding purpose of the Act (s 56); the objects of case management (s 57); the dictates of justice (s 58); the elimination of unwarranted delay (s 59); and the question of the proportionality of costs (s 60).

16. As the plaintiff’s claim is a claim for damages arising out of bodily injury, it is necessary that I be satisfied that special circumstances exist before leave is granted for interrogatories. It is a relevant, but not decisive, matter, that leave has already been granted and interrogatories have already been administered and answered. This Court’s power to grant leave to administer interrogatories is, ultimately, not constrained by the rules. Nonetheless, there are good forensic reasons (which are reflected in the restrictive wording of UCPR 22.1) for careful scrutiny of draft interrogatories in cases of this nature before a party is directed to answer them.

17. By reason of Part 6 of the Civil Procedure Act and the terms of UCPR 22.1 itself, the principal question is whether it is in the interests of justice that the defendants be required to answer the draft interrogatories propounded by the plaintiff.

The present application for leave to administer further interrogatories

18. It is convenient to address the application for leave by dividing the draft interrogatories into categories and providing reasons in respect of the various categories.

Requests for clarification of previous answers

19. The draft interrogatories in this category include 1.1 and 1.3 in respect of interrogatories addressed to the first defendant. For example 1.1 asks the first defendant to clarify the answer to question 2(c) in the Statement in Answer to Interrogatories and asks why the question was incorrect. The question and answer to 2(c) were as follows:

“Did you know that Dr Rao made eight attempts to pass the first component in respect of his Orthopaedic fellowship qualification? If so when?

No, this is incorrect.”

20. I do not regard there to be any ambiguity regarding this answer. The effect of the first defendant’s answer is that he did not know what is asserted and that what was asserted was incorrect. This interpretation was confirmed in Court by Mr Kettle, who appeared on behalf of the defendants.

Questions about the meaning of certain entries in documents produced from the College as to the second defendant’s academic and training performance

21. Several questions fall into this category, such as 1.2 of the draft addressed to the first defendant which asks:

“How many attempts did Dr Rao make to pass the first component in respect of his Orthopaedic fellowship qualification?”

22. The verified answers given by the second defendant indicate that he passed the first component of his Orthopaedic fellowship qualification on his first attempt in 2004. Given the first defendant’s admission (referred to above) in 2(g) of his answers that he knew “all aspects” of the second defendant’s training, there is no utility in draft interrogatory 1.2, since the questions both of the underlying fact and the first defendant’s knowledge have already been answered. Draft interrogatories 1.4 and 1.5 to the first defendant are in the same category.

23. It is common ground that documents were produced by the College in answer to a subpoena. Mr Kettle submitted that the documents meant what they said and there was no particular ambiguity in them. Mr Romaniuk SC, who appeared with Ms Kumar for the plaintiff, contended that the records were ambiguous and pointed to the extracts from Dr Higgs’ report set out above in which Dr Higgs appears to have understood that the second defendant failed his primary examination on about eight occasions (which, if it is a reference to the orthopaedic surgery examination, appears to be incorrect).

24. The College records were not tendered in evidence before me at the hearing of the notice of motion. Accordingly, I am not in a position to judge that question by reference to the documents themselves. However, it is tolerably clear from the way the draft interrogatories have been framed that the plaintiff’s legal representatives have been able to understand the documents sufficiently to seek admissions. For example, draft interrogatory 3.5 addressed to the first defendant is in the following terms:

“Were you aware that Dr Rao had failed his Royal Australian College of Surgeons Part 1 Examination Multiple Choice seven times?”

25. The corresponding questions to the second defendant refer specifically to the sittings of this examination in November 1998, March 1999, June or July 1999, March 2000, 2000 (unspecified month), February 2001, June 2001 and October or November 2001 (draft interrogatories 1, 2, 3, 4, 5, 6, 7 and 8) and ask questions in respect of each sitting. Draft interrogatories 3.6-3.9 inclusive (directed to the first defendant) also fall into this category. Draft interrogatories 9-14 ask the second defendant about matters which I infer are sufficiently plain from the documents produced, having regard to the specificity of the questions. Draft interrogatories 12-15 ask the second defendant about matters that have occurred after the operation on the plaintiff which is the subject of the proceedings. For example, draft interrogatory 15 asks about surgery performed by the second defendant since he became a fellow of the College (which occurred after the surgery).

26. To grant leave to administer interrogatories of this type would be, in my view, unduly burdensome. The forensic procedures available to parties in this Court are complementary. The selection of the appropriate procedure to achieve the desired forensic end is important. For example, it would appear that the records produced by the College are business records and, accordingly, admissible pursuant to s 69 of the Evidence Act 1995 (NSW). Their provenance and authenticity would appear to be established by their having been produced in answer to a subpoena. In these circumstances specific admissions in answers to interrogatories directed to the second defendant are not required to prove the point. There is little, or no, forensic utility in asking the first defendant about these matters since he has admitted that he knows all aspects of the second defendant’s results, which are, presumably, a matter of record.

27. The second defendant’s prior experience of performing operations of the type performed on the plaintiff has already been the subject of admissions referred to above, either by the answers given to the first set of interrogatories, which can be tendered as admissions in the plaintiff’s case; or by reason of the defendants’ non-response to certain paragraphs of the notice to admit facts served by the plaintiff, which has the effect of amounting to admissions. Such admissions constituted by the defendants’ non-responses to the plaintiff’s notices to admit facts can be tendered against the defendants in the plaintiff’s case as admissions for the purposes of the proceedings: UCPR 17.3(2). The defendants are not permitted to withdraw any such admissions without the leave of the Court: UCPR 17.3(3).

Whether the examiners whose remarks are recorded in the College records would have personal knowledge of the matters set out

28. Mr Romaniuk raised a further matter regarding the College records in support of his contention that leave ought be granted to administer further interrogatories. He contended that it could not necessarily be inferred that the examiner’s comments recorded on the College records were made by “a person who had or might reasonably be supposed to have had personal knowledge on the basis of the asserted fact” within the meaning of s 69(2)(b) of the Evidence Act (which excepts representations in business records from the hearsay rule in certain circumstances). It is not useful to speculate about the matters of which an examiner would have personal knowledge, particularly when the College documents are not in evidence.

29. However, it is useful to take as an example draft interrogatory 3.9.4 (addressed to the first defendant) which says:

“Were you aware that the Board of Examiners and the Division of Surgical Training and Assessment indicated in the ‘Feedback report- September 2007 Fellowship Exam’ that Dr Rao’s knowledge was that “discussion of complications of surgical treatment was very limited and less than is expected at fellowship level”?”

30. I assume that the comment contained within the draft interrogatory was recorded in the Feedback report following the September 2007 Fellowship examination (which the defendants admit that the second defendant failed). Although it will be a matter for the trial judge to determine the admissibility of such a document if tendered in evidence at the trial, it is sufficient for present purposes to say that the document would appear to be, at the very least, probative of the proposition that the view expressed was held by the Board of Examiners which examined the second defendant shortly prior to the operation performed on the plaintiff.

31. Further, it is difficult to see how any admission either of the defendants could give in an answer to an interrogatory could assist the plaintiff’s case, except in so far as the first defendant’s knowledge of the view of the Board of Examiners is concerned. As to that matter, the admission already made by the first defendant (referred to above) is sufficient to cover knowledge of the view of the Board of Examiners.

Questions about the first defendant’s recollection

32. The first defendant said in verified answer 12(a) that he could not recall whether he was in the operating theatre. Draft interrogatories 2.1 and 2.2 (directed to him) seek to ask how he could know whether he supervised the installation if he could not recall whether he was there. These are arid questions in light of the defendants’ admissions that the first defendant was not physically present and did not (other than “remotely”) supervise the operation. I consider the same considerations apply to render interrogatories 3.1, 3.2, 3.3 and 3.4 (addressed to the first defendant) unnecessary.

Questions regarding the first defendant’s location at the time of the operation

33. As referred to above, the defendants have admitted that the first defendant did not attend the operation. The first defendant said, in verified answer 12(a), that if he had been required to attend he would have done so from “only one floor away”. He also said, in answer to interrogatory 12(c):

“Is it your usual practice to be the nominated first doctor in the operation report (operation report dated 20/10/07) and to not be in the operating room at the time of the procedure?

Yes. I was the head of the surgical team whether I was in the operating theatre or not. However, I was nominated only when I was physically available within the hospital at the time the surgery was performed.”

34. In these circumstances, I am not persuaded that any additional information that could be gleaned from further interrogatories about where the first defendant was and what he was doing (even if his recollection and the records would permit these questions to be answered) warrants the granting of leave to ask further interrogatories on that topic.

Questions relating to whether it was appropriate for the first defendant to be absent from the operating theatre when the second defendant was performing the surgery

35. The draft interrogatories in this category include 2.5, 2.6 and 2.7 which are directed to the first defendant. I consider them to be argumentative. It is sufficient to set out one of these by way of example. Draft interrogatory 2.5 asks:

“Knowing that Dr Rao had failed his Royal Australian College of Surgeons Fellowship Examination on 28 May 2007 and 17 September 2007, what is the basis for your belief that Dr Rao did not require your supervision and/or assistance?”

36. These are matters that can be explored with the first defendant in cross-examination if he gives evidence. If he chooses not to give evidence, the plaintiff will have the benefit of the inference that his evidence would not have assisted his case: Jones v Dunkel (1959) 101 CLR 298.

Conclusion

37. I am not satisfied that special reasons exist which justify the making of an order for further interrogatories. The plaintiff has not established a need for any of the interrogatories in the drafts annexed to the notice of motion. There are other, more suitable forensic measures which can be, or have already been, taken by the plaintiff to achieve her forensic purpose. In these circumstances, I am not satisfied that it is in the interests of justice to grant the further leave sought by the plaintiff.

38. As to costs, I understood the parties to accept that costs ought follow the event. I am satisfied that this is the appropriate course.

Orders

39. I make the following orders:

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.

**********

Decision last updated: 12 October 2016