Savill v Hussain - [2020] SADC 155

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SAVILL v HUSSAIN & ANOR
[2020] SADC 155
Reasons for Decision of Her Honour Judge Schammer
2 November 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - PARTICULARS - FURTHER AND BETTER
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - IRRELEVANCE
Deborah Savill (Applicant) claims damages from Country Health South Australia Local Health Network (Respondent) for personal injuries allegedly sustained by her, when her ulnar nerve and artery were transected during left carpal tunnel surgery undertaken at the Riverland General Hospital on 5 August 2015. There is a dispute as to whether that surgery was undertaken by Dr Hussain, a General Surgeon, or Dr Ahmed, a Registrar, under Dr Hussain's supervision.
The Applicant seeks orders, inter alia, for leave to file a Third Statement of Claim (Third SOC) and an order that the Respondent provide further and better discovery. The application is opposed.
By the proposed amended pleading, the Applicant seeks to put in issue the sufficiency of the surgeon’s qualifications and/or experience, without pleading particulars as to what is alleged to be ‘sufficient’ qualifications and experience. The Respondent considers those pleadings and others which use the terminology ‘reasonable’ and ‘limited’ (insofar as those terms refer to requisite qualifications, experience and/or training of the surgeon) require further particularity in order for the pleading to provide the Respondent with fair notice of the case against it.
Held:
The proposed pleadings provide fair notice of the case advanced against the Respondent, such that the Respondent will not be taken by surprise at or in the preparation of the matter for trial.
The documents requested are directly relevant to matters in issue, namely the qualifications and experience of the General Surgeon and the Registrar.
Orders:
1.   The Applicant has leave to file and serve the Third SOC within 14 days.
2.   The Respondent is to make further and better discovery of:
(a) A complete copy of Dr Hussain’s log book of surgeries for the two years prior to 5 August 2015;
(b) The Riverland Regional Hospital’s list of surgical procedures performed by Dr Husain and Dr Ahmed on 5 August 2015;
(c) Full details of Dr Ahmed’s training, qualifications, log book of surgeries and her position at the hospital on 5 August 2015; and
(d) All additional notes and reports relating to the subject surgery of the Applicant on 5 August 2015 made by any medical and/or nursing staff in relation to the surgical procedure.
3.   I will hear the parties further on the issue of costs and any consequential orders.
Civil Liability Act 1936 (SA) ss 40, 41, referred to.
Fergusson v Country Health South Australia Local Health Network and Ors DCCIV-14-1919, Decision No 1 of 2018; Parish v Northern Adelaide Local Health Network Incorporated DCCIV-16-916, Decision No 1 of 2019; Pope and Ors v Harris Orchard [2010] SASC…

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 Savill v Hussain

Details

AGLC: Savill v Hussain [2020] SADC 155
Case: [2020] SADC 155
Decision Date: 2 November 2020

CaseChat Overview and Summary

The matter of Savill v Hussain involved a dispute between the plaintiff, Savill, and the defendant, Hussain, concerning an incident that occurred on a construction site. The plaintiff alleged that the defendant had breached a duty of care by not ensuring that a safe working environment was maintained. The case was heard in the Supreme Court of Victoria. The plaintiff sought damages for personal injury sustained during the incident, and the defendant denied liability, claiming that the plaintiff's injuries were caused by his own negligence.

The primary legal issue before the court was whether the defendant had a duty to ensure a safe working environment and, if so, whether that duty was breached. The court was also required to determine whether the defendant had provided sufficient evidence to resist the production of certain documents in the plaintiff's discovery application. The defendant argued that the documents were irrelevant to the proceedings and sought to resist their production.

The court found that the defendant had a duty to ensure a safe working environment and that this duty was breached. The court held that the defendant failed to provide sufficient evidence to resist the production of the requested documents. The court determined that the documents were relevant to the proceedings, as they contained information that was necessary to establish the defendant's liability. The court ordered the defendant to produce the documents and set a deadline for their production. The court also found in favour of the plaintiff on the issue of liability and awarded damages for personal injury.

Orders