Roast v Northern Health (Ruling)
[2024] VCC 1015
•12 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-23-04967
| KEVIN ROAST | Plaintiff |
| v | |
| NORTHERN HEALTH | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July 2024 | |
DATE OF RULING: | 12 July 2024 | |
CASE MAY BE CITED AS: | Roast v Northern Health (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1015 | |
RULING
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Subject:PRACTICE AND PROCEDURE – DISCOVERY
Catchwords: Discovery – application by plaintiff for further and better answers to interrogatories and further and better discovery
Legislation Cited: County Court Civil Procedure Rules 2018, r30; Evidence (Miscellaneous Provisions) Act 1958
Cases Cited:Adams v Dickeson [1974] VR 77; Victorian WorkCover Authority v Melbourne Health [2011] VCC 1170; Smith v Colac Area Health (Ruling) [2013] VCC 1892; Ersoy v Spotless Services Australia Ltd and Anor (Ruling) [2023] VCC 620; Giannopoulos and Ors v Melbourne Health (Ruling) [2024] VCC 551; Victorian WorkCover Authority v Melbourne Health [2011] VCC 1170; Smith v Colac Area Health (Ruling) [2013] VCC 1892; Hare v Riley and Australian Mutual Provident Society [1974] VR 577
Ruling: The defendant provide a further and better answer to interrogatories 1(b), 1(c), 1(d), 1(f), 2(a), 2(b), 4(b), 7(a), 7(b), 7(d), 11, 12 and 13. The defendant provide further and better discovery.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Crock | Carbone Lawyers |
| For the Defendant | Mr S Scully | Minter Ellison |
HIS HONOUR:
Introduction
1The plaintiff has brought an application seeking further and better answers to interrogatories and further and better discovery from the defendant.
2Proceedings were commenced on 12 September 2023 by way of Writ and Statement of Claim. The pleadings state that, in or about June 2020, the plaintiff, employed by the defendant, suffered injury at the Northern Hospital in Epping Victoria. It is pleaded a patient attempted to leave the premises and in so doing, pushed the plaintiff backwards, causing him to sustain injury.
3The proceedings are listed for trial on 28 August 2024 before a judge and jury.
4I have an affidavit of the plaintiff’s solicitor, Tobias Dean McArthur Robinson, sworn 23 May 2024, and was also provided with an index and attached documents, relevant to the interrogatories.
Interrogatories
5The Full Court of the Supreme Court of Victoria in Adams v Dickeson[1] said:
“… The prime object of interrogation is to enable the party to litigation to obtain discovery of material facts in order either to support or establish proof of his own case; or to find out what case (but not the evidence) he has to meet; or to destroy or damage the case brought by his opposition. … .
… The prime purpose is to obtain admissions from the respective parties so as to narrow the necessary proof of the issues raised in the pleadings. … .”[2]
[1][1974] VR 77
[2]Ibid at 79
6Order 30 of the County Court Civil Procedure Rules 2018 (“the Rules”) provides the rules for interrogatories.
7As the defendant is a corporation, r30.05 has application with respect to the source of information for the deponent in providing answers to the interrogatories.
8Sub-rule (1)(g) states:
“(g)where the party is a corporation, this Rule applies, with any necessary modification, as if—
(i) the person who answers the interrogatories on behalf of the corporation were that party; and
(ii) in particular, as if the reference in paragraph (e) to a servant or agent of the party were a reference to a servant or agent of the corporation.”
9Relevant also is sub-rule (1)(e), which states:
“(e) where the party has no personal knowledge of the fact or matter inquired after, the party shall, for the purpose of enabling the party to form a belief as to the fact or matter (so far as the party can), make all reasonable inquiries to determine—
(i) whether any person has knowledge of the fact or matter which was acquired by that person in the capacity of that party's servant or agent; and
(ii) if that is the case, what that knowledge is;”
10The interrogatories for which a better answer is sought all require the deponent to look at material which was discovered by the defendant.
11Discovery is usually completed before interrogatories are served. One purpose for this is that discovery of documents may show that a party has knowledge of a fact, proof of which may assist in establishing a case. Knowledge of the fact or enquiries in relation to the fact may be the subject of interrogation. In discovering a document, a party concedes it, or part of the document, will relate to a question in the proceedings.
12The defendant’s answers were provided by Awash Pracad, who stated that:
“I … am the authorised representative of the defendant, and I am authorised by the defendant to make this affidavit on its behalf. I do so having made all due and proper enquiries of the servants and agents of the defendant. … .”
13In nearly all the answers provided by the defendant, an objection was taken but despite the objection, a form of answer was provided.
14The wording of the questions, and the answers provided, raise issues as to the appropriateness of the question and answer in accordance with the Rules and authorities. Despite this, I will consider each interrogatory and answer, and rule accordingly, and not place the trial date at risk by ordering new interrogatories to be served and answered.
15The request is for Interrogatories 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 2, 2(a), 2(b), 3, 3(a), 3(b), 4, 4(a), 4(b), 7, 7(a), 7(b), 7(c), 7(d), 9, 11, 12 and 13.
Interrogatory Request
Interrogatory 1(a)
16This interrogatory seeks full particulars and details of whether the patient who is alleged to have assaulted the plaintiff had previously presented or been admitted as a patient on the defendant’s premises. The answer provided is “yes”, but then an objection is taken on the basis that the use of the word “details” is a vague, unclear and oppressive request. The answer states it is not known what is meant by the request for information and, that the information sought may require material to be divulged which is subject to s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (“the EMPA”).
17The interrogatory is unclear as to what is sought. Further, by referencing the Incident Report, I consider it adds to the confusion. The interrogatory does not simply ask, had the patient been admitted on previous occasions and, if so, when? I do not understand why enquiring on such a fact, reference must be made to the Incident Report. Nor do I understand why the divulging of any attendances would automatically lead to issues regarding s28(2). I am not prepared to order the defendant provide a further and better answer to Interrogatory 1(a).
Interrogatory 1(b)
18This interrogatory, again referencing the Incident Report, asks the deponent whether, prior to the date of the incident, the defendant was aware, or had any record, of the patient exhibiting any drug-affected and/or aggressive behaviour. An objection of the interrogatory having been vague, unclear and oppressive was taken. It is said the defendant did not know what the plaintiff meant by drug-affected or aggressive behaviour. Further, that this did not relate to any questions between the defendant and the plaintiff.
19I do not accept this is a valid answer. The deponent should make all reasonable enquiries, and the issue of the patient exhibiting behaviour referred to is very much an issue between the parties. The particulars pleaded in the Statement of Claim refer to violent and aggressive risk management requirements, behavioural management issues, a code grey, and systems relating to violence prevention, de-escalating aggression, managing behaviours and communication skills. The defendant is required to provide particulars of any dates when the patient may have exhibited those behavioural traits, which were matters very much within the management and control of the defendant given the services it provided to the patients. The defendant is required to provide a further and better answer to Interrogatory 1(b).
Interrogatory 1(c)
20This interrogatory asks whether, on the date of the incident and prior to the occurrence of the incident, the patient was identified as a self-harm and suicide risk. The objection questions what is meant by “reportedly”, but, thereafter, under cover of objection, the defendant stated it had formed the view, on the date and prior to, that the patient was at risk of self-harm and/or suicide. I find that answer inconsistent. The provision of the answer that they had formed the view clearly indicates they understood what was meant by “reportedly”. The defendant is to provide a further and better answer.
Interrogatory 1(d)
21This interrogatory requires, if having answered “yes” to any previous parts of Interrogatory 1, to describe what, and, if any, steps the defendant had taken in response to the aforesaid risk. The answer provided was that the deponent had not answered “yes” to the previous interrogatories; however, an answer was then provided of a process that was introduced. As with the previous interrogatory answer, the response is totally inconsistent with the objection taken. The defendant is required to provide a better answer to Interrogatory 1(d).
Interrogatory 1(e)
This interrogatory asks, on the date of the incident and prior to the incident, was the plaintiff found to have taken all appropriate action? The objection is that the interrogatory was vague, unclear and oppressive, and that the plaintiff was not allocated to provide care to the patient at the time. In paragraph 2 of the Defence, paragraph 2 of the Statement of Claim is denied. That paragraph pleaded that the plaintiff was, at relevant times, working nightshift in the Emergency Department at the premises and acting in the course of, and within the scope of, the employment. “Relevant time” is not defined in the pleadings and there is no precision about the actual date in the pleadings with respect to the event, the subject of this alleged injury. I consider in the circumstances that this answer is sufficient.
Interrogatory 1(f)
22This asks at the time of the incident, to state whether the patient reportedly pushed the plaintiff. An objection is taken on what is meant by “reportedly”, but otherwise the answer is stated as “yes”. That interrogatory should be answered properly, without any objection, as all reasonable enquiries should be made to establish whether or not the plaintiff pushed the plaintiff.
Interrogatory 2
23This interrogatory requires the deponent to look at a community risk assessment and plan document dated 24 June 2020 within the clinical records of Northern Health.
Interrogatory 2(a)
24This interrogatory asks, on the date of the incident and prior to it occurring, was the patient escorted to the Emergency Department, where he attempted to grab a police gun with a plan to shoot himself. An objection is taken that the interrogatory is oppressive and prolix and requires the deponent to speculate on actions not witnessed, nor corroborated, and to speculate as to the patient’s state of mind.
25Rule 30.07 sets out the grounds of an objection to answer, which includes sub-rule (1)(d). That is, that an objection can be taken if the interrogatory requires the party to express an opinion which the party is not qualified to give. If that objection is taken, however, the answer should clearly state it is objected to in terms of subrule(1)(d). Here, the deponent is not asked to express any opinions, but what happened. In other words, the question asked is, was the patient escorted to the Emergency Department and while there, did he grab a police gun, and were there any statements or anything said in respect to whether he intended to shoot himself. They are all questions for which enquiries should be made by the defendant. It is not oppressive nor prolix. If the enquiries are such that an answer cannot be provided, then that should be deposed to and why. If not, an answer must be provided. A further and better answer to Interrogatory 2(a) is to be provided.
Interrogatory 2(b)
26This interrogatory asks whether, on the date of the incident, the patient was aggressive towards police due to intoxication and wanting to harm himself. The defendant says that he was aware the patient became agitated while in the presence of the Victoria Police, but otherwise objects to the interrogatory as it was oppressive and prolix. Further, it required speculation as to the patient’s state of mind. The question seeks an answer on a factual situation and the interrogatory should be answered accordingly. The defendant’s objection is not valid and a further and better answer is required.
Interrogatory 3
27If the answer to Interrogatory 2 was “yes”, then Interrogatory 3 applies.
Interrogatory 3(a)
28This interrogatory asks, did the defendant warn the plaintiff of “such matters” prior to the happening of the incident. Such matters, when considered with Interrogatory 2, refers clearly, the actions of the patient. The defendant’s answer was that they were not required to answer Interrogatory 3, given the answers to Interrogatory 2(a) and 2(b). After having taken that objection, the defendant states that the plaintiff was not allocated to provide care to the patient on that date. Although I have ordered that the defendant provide a better and further answer to Interrogatory 2(a) and 2(b), I am satisfied this answer is sufficient, given that the defendant’s defence includes that the plaintiff was not allocated to provide care to the patient at the time.
Interrogatory 3(b)
29It follows from my ruling for Interrogatory 3(a), that an answer to Interrogatory 3(b) is not required.
Interrogatory 4
30This interrogatory asks the deponent to look at a violence and aggression risk assessment and management plan.
Interrogatory 4(a)
31This interrogatory asks for an answer on whether the plan was properly filled in. An objection is taken that it is vague, unclear and oppressive, and it is not clear what is meant by “properly”. Despite that objection, the answer states that the plan was completed at approximately 1.40am on 14 June 2020. I find the inconsistency of the answer provided by the defendant difficult to understand. To suggest there was a lack of clarity in what was being asked, and then provide a specific answer, is clearly inconsistent. However, I am also concerned with the lack of clarity with the use of the expression “properly filled in”. Therefore, I will not order the defendant to provide a further and better answer.
Interrogatory 4(b)
32This interrogatory seeks an answer on whether the plan was adequate in the circumstances and, if so, how. An objection was taken that the opinion as to whether the plan was adequate did not relate to a question between the parties. This interrogatory raises issues on whether an opinion is required to be expressed and that opinion may be beyond the expertise of the deponent; however, that is not how the objection is made. I do not accept it does not relate to an issue between the parties but the answer in its present form is not valid and a further and better answer is required.
Interrogatory 7
33This interrogatory requires the deponent to look at a document referred to as an EMRG mental health injury of 14 June 2020, within the clinical records of the hospital.
Interrogatory 7(a)
34This interrogatory seeks an answer as to whether the patient had drunk a bottle of gin. The objection is that the interrogatory is oppressive and requires the deponent to speculate without any direct knowledge and about which the author of the entry had no direct knowledge beyond what the patient told her. The defendant, making all proper enquiries, should be in a position to ask of the author of the entry, that question. If that author is not available and no further information is available on the entry, then the answer should specify that. A discovered document contains an entry to the effect of what is being enquired about. Proper enquiries should be made, the objection is not valid, and a better answer is required.
Interrogatory 7(b)
35This interrogatory asks whether the patient had been aggressive towards the police. The answer refers to the previous answer. As with the previous interrogatory, an entry has been made, and an enquiry, on the facts surrounding that entry, should be made. If the answer cannot be provided, then it should state that precisely. A better answer is required.
Interrogatory 7(c)
36This interrogatory asks whether a risk was identified in relation to the patient running in front of traffic when disassociated. While an objection was taken on the grounds of the answer to Interrogatory 7(a), I have difficulties with the question, and its relevance. Further, to answer it may require the expression of an opinion beyond the deponent’s expertise. I will not order the defendant to provide a further and better answer.
Interrogatory 7(d)
37This interrogatory asks a specific question on whether the patient was sedated, but why it was not done earlier. The answer provided was an objection, but referenced the answer to Interrogatory 6(e). Then, to the question of whether the patient was given Diazepam before or after the incident, it was answered that the patient received it before and after the incident. This interrogatory should be answered directly, stating “yes” if the patient was sedated with the medication. As the interrogatory required an answer, why this was not done earlier must be answered or a proper objection taken. The defendant is to provide a further and better answer to this Interrogatory.
Interrogatory 9
38Interrogatory 9 requires the deponent to look at an aggression management framework procedure, dated 19 April 2010. It asks for particulars describing how this system was safely prescribed, implemented and working effectively at the premises. The answer by way of an objection is that the deponent’s opinion on the safety of the system is not a matter relevant to a question between the defendant and the plaintiff. That answer does not correctly answer the objection in accordance with the Rules. The performance of the system is an issue between the parties but whether the person answering on behalf of the defendant has the expertise is questionable. Further, it does not appear to me to be a matter for interrogatories but rather for any expert opinion. Although not correctly worded, a further and better answer to Interrogatory 9 is not required.
Interrogatory 11
39This interrogatory requires the deponent to look at a clinical handover communicating a safety procedure, dated 22 May 2013. It asks what, if any, handover the plaintiff received in respect of the patient. Objection is taken on the grounds that the interrogatory is oppressive and prolix. However, the answer provided is that there was no handover. The defendant should provide a proper answer to that interrogatory and not under cover of objection, stating if there was no handover exactly that.
Interrogatory 12
40This interrogatory requires the defendant to look at a code black procedure document dated 1 October 2014. It asks why a code black was not called in, given the behaviour of the patient. The objection is based upon objection taken on Interrogatory 2(a). That was, that it would require the deponent to speculate on matters not witnessed and the patient’s state of mind. I am not satisfied that the objection is valid, but if there is an objection, then the specific reasons and grounds should be stated for that. A further and better answered is required.
Interrogatory 13
41This interrogatory requires the deponent to look at a document headed “Aggression Behavioural Contract Procedure”, dated 19 February 2018. It asks for full particulars on how the defendant complied with that system in respect to the incident. Objection is taken on the grounds that it is oppressive and prolix. Objection is further taken that it requires to express an opinion and it is not an issue in question between the parties. It is not oppressive or prolix. It does relate to an issue between the parties. Further, despite objecting, the defendant says a code grey was initiated and acted. This is not a valid objection, and the defendant is to provide a further and better answer to Interrogatory 13.
Discovery
42The plaintiff’s request for further and better discovery is in the form of three categories of documents and I will deal with each separately.
43Category 1 documents are set out in the plaintiff’s solicitor’s affidavit at paragraph 9. The request initially made on 18 April 2024 has been modified and is now confined to a document referred to as the VHIMS document. That document has been discovered and refers to other investigations or documents. The VHIMS document was created after the code grey was called which involved the patient. Any further documents associated with the VHIMS document should be discovered, and I note that the defendant does not oppose the production of any such documents and is making further enquiries in that regard.
44Category 2 documents are set out at paragraph 10 of the plaintiff’s solicitor’s affidavit and arose from a request made on 6 May 2024. Again, the request has been modified. The plaintiff sought all documents relating to assaults on staff members carried out by patients and visitors on the defendant’s premises, including incident reports, investigations, warnings, directions, and Health and Safety Committee meetings and minutes. The request initially sought documents for the time period 13 June 2015 to the current date. The modified request is for six months before and six months after the incident. The request is opposed by the defendant, who argue it is a fishing expedition. They have also referred to the size of the defendant’s premises and organisation and the issues of proportionality which arise from the request.
45Even in its modified form, the current request is unreasonable. The request for those types of documents in a limited timeframe is reasonable, provided it is limited to the real issues in dispute between the parties, and based upon the pleadings.
46The plaintiff sustained an injury from a patient on the defendant’s premises. The defendant pleads the plaintiff was not directed or involved in the management of the patient at the time. It was whilst leaving the premises that the patient is alleged to have assaulted the plaintiff. The facts are very confined to circumstances involving a patient referred to as a psychiatric patient who was or may have been under the influence of drugs and alcohol at the time. Any request for incident reports and associated documents should be confined to this.
47I will make an order that the defendant provide discovery confined to assaults by patients identified as a psychiatric patient on staff members or visitors whilst attempting to leave the premises. Such discovery should be confined to the six months pre and post-incident date.
48Category 3 documents were detailed at paragraph 8 of the plaintiff’s solicitor’s affidavit. This, however, is effectively the patient’s hospital file. It is this category of document that requires the greatest discussion, as it involves issues related to s28(2) of the EMPA. That section, headed “Confessions to doctors”, says:
“(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.”
49An objection was taken by the defendant to the provision of the file to the extent that it may contain material covered by s28(2).
50There are a number of authorities from this Court where this section has been considered and which provide me a great deal of assistance.
51Those authorities are:
(i) Victorian WorkCover Authority v Melbourne Health;[3]
(ii) Smith v Colac Area Health (Ruling);[4]
(iii) Ersoy v Spotless Services Australia Ltd and Anor (Ruling);[5] and
(iv) Giannopoulos and Ors v Melbourne Health (Ruling).[6]
[3][2011] VCC 1170
[4][2013] VCC 1892
[5][2023] VCC 620
[6][2024] VCC 551
52What is clear from those authorities is that when considering matters under this section, not only is consideration required of whether the section applies, but the manner the Court considers the application is as important. There is a process which must be followed when considering the section’s application.
53Put simply, the process requires:
(i) The request for discovery is made for a patient’s file for the purpose of proceedings where the patient is not a party to the proceeding;
(ii) The hospital/medical centre to whom the request has been made should make all reasonable enquiries to ascertain the consent or otherwise of the patient regarding the production of the file;
(iii) The hospital/medical centre or solicitors acting on behalf of that organisation are to then inform the requesting party as to whether consent or otherwise has been obtained;
(iv) If no consent has been obtained, or the patient has been unable to be located, then the requesting party, if satisfied reasonable attempts have been made, should then make application to the Court for an order to produce the file.
54From the authorities there are also a number of principles which should apply if an order has been made for the production of the file to the Court.
55They are:
(i) Section 28(2) should be read with the ordinary meaning of its terms;[7]
(ii) In order to find that s28(2) applies to the documents, it needs to be established that it is probable they contain information acquired by a medical practitioner in attending the patient which was necessary to enable the practitioner to prescribe or act for the patient. That can be ascertained from their nature or by appropriate inference;[8]
(iii) The onus exists on those who assert that the provisions of s28(2) apply;[9]
(iv) In giving reasons, some detail of the documents should be provided;[10]
(v) Documents which are to be excluded under s28(2) include:
(a)clinical records by doctors and nurses attending or prescribing for the patient;
(b)records not relevant to the issues in the proceedings;
(c)records relating to attendances at the hospital after the incident;[11]
[7]Victorian WorkCover Authority v Melbourne Health [2011] VCC 1170 at paragraph [13]
[8]Ibid at paragraph [15]
[9]Ibid at paragraph [16]
[10]Ibid at paragraph [17]
[11] Smith v Colac Area Health (Ruling) [2013] VCC 1892 at paragraph [12]
(vi) In respect to staff and their observations of a patient’s behaviour, observations of behaviour by staff are not made in a medical context but are simply observations within the realm of non-medical persons employed at a facility when observing the patient’s behaviour categorised as mentally disturbed, aggressive or dangerous.[12]
[12]Ibid at paragraph [15]
56I also note that in the authorities, the judge was required to examine the material and identify the material covered by s28(2). In Ersoy v Spotless Services Australia Ltd and Anor (Ruling),[13] his Honour Judge Clark also noted that for completeness, redaction for the purpose of the identity of the patient was appropriate.[14]
[13]supra
[14]Ersoy at paragraph [42]
57It is also appropriate to consider what was said in Hare v Riley and Australian Mutual Provident Society[15] by Norris, J when he stated:
“I therefore conclude that the words ‘in attending the patient’ do not limit the application of the sub-section to information acquired by the doctor in the physical presence of the patient. There are dicta in the authorities to the effect that information acquired by the doctor from other persons may fall within the expression ‘information acquired while attending the patient’. …
I therefore conclude that information acquired by the physician or surgeon in applying himself to the care of the patient from other medical men by letter or by oral communication or otherwise, if the information was necessary to enable him to prescribe or act for the patient is within s28(2). For the same reasons like information acquired from those who perform what I believe are called para-medical services such as physiotherapists or indeed from any other source is covered by the enactment.”
[15][1974] VR 577 at 582
58That approach was accepted by his Honour Judge Ginnane, as he then was, in Victorian WorkCover Authority v Melbourne Health.[16]
[16]Supra
59For the third category of documents before making any decision in respect to the application of s28(2), the steps that I have set out in paragraph 53 above, must be completed. At this time, it is not known whether any attempts have been made to communicate with the patient regarding consent. That information is required to be provided by the defendant. If the defendant has been unsuccessful, then the Court should be informed and an order regarding the production of the file should be made. Thereafter, either myself or another judicial officer should consider the material provided for the application of section 28(2).
60As the proceedings are listed for trial on 28 August 2024 so as not to delay the matter further, this Ruling will be provided in its current form. The final steps which I have identified for the Category 3 documents should be taken without delay and, upon the defendant informing the plaintiff regarding the availability of the patient’s consent, the matter should be immediately referred to myself or another judicial officer for an appropriate order. The orders I make arising from this Ruling will include a direction that the application be made and application to the Court thereafter when that direction has been completed.
61I did not obtain submissions on costs. The plaintiff has been partially successful on the application but the request for discovery is not concluded. Therefore, I propose to make an Order that costs are reserved pending a final ruling or resolution of the dispute.
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