Van Den Boogaard v Emergency Services Telecommunications Authority

[2018] VSC 674

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2017 04451  

JEANNIE VAN DEN BOOGAARD	Plaintiff
v
EMERGENCY SERVICES TELECOMMUNICATIONS AUTHORITY	Defendant

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JUDICIAL REGISTRAR:	Clayton JR
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2018
DATE OF RULING:	8 November 2018
CASE MAY BE CITED AS:	Van Den Boogaard v Emergency Services Telecommunications Authority
MEDIUM NEUTRAL CITATION:	[2018] VSC 674

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PRACTICE AND PROCEDURE – Discovery – Order for particular discovery – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.08 – Whether the documents are relevant to the issues in dispute.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Fraatz	Arnold Thomas & Becker
For the Defendant	Ms R Kaye	Injury Dispute Practice Lawyers

JUDICIAL REGISTRAR CLAYTON:

Background

1. Ms Van Den Boogaard worked as a radio dispatcher with the Emergency Services Telecommunications Authority (‘ESTA’), which provides operators to take emergency calls.  On 7 February 2009, a day known as Black Saturday, she was on duty in a role that required her to communicate with the Country Fire Authority (‘CFA’) in Region 13, which covered Kinglake and surrounding areas.  That region was devastatingly impacted by the Black Saturday bushfires.

1. Ms Van Den Boogaard says that on that day she had to work extended hours handling a high volume of calls including many distress calls.

1. Although she says she suffered significant anxiety and depression following Black Saturday, she continued to work as a radio dispatcher until 9 February 2014 when she was on duty during another bushfire, known as the Mickleham bushfire.  She says that her work on that day exposed her to similar stress and she developed a severe post-traumatic stress disorder and a major depressive disorder.

1. Following the Mickleham bushfire, Ms Van Den Boogaard lodged a claim for compensation and in 2017 she issued proceedings in this Court seeking damages for pain and suffering and economic loss.  She alleges that due to her injuries she is totally and permanently incapacitated for employment.  Ms Van Den Boogaard alleges that the defendant was negligent in two ways: firstly, by failing to adequately prepare and plan for Black Saturday; and secondly, by failing to adequately deal with the consequences of Black Saturday.

Particular Discovery

1. An Affidavit of Documents on behalf of ESTA was filed on 27 July 2018, identifying 65 relevant documents in its possession, custody or power.

1. Ms Van Den Boogaard seeks further particular discovery pursuant to rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). Prior to the hearing of this application there was agreement between the parties in relation to some of the material sought. The defendant agreed to provide: Ms Van Den Boogaard’s personnel file; the staff rosters and staff availability on Black Saturday, and; transcripts of calls/operations dealt with by the defendant on Black Saturday and on 9 February 2014. Adopting the identification letters of the Plaintiff’s Schedule of Documents for Further Discovery handed up in Court, Ms Van Den Boogaard presses her application in relation to:

B.     Particulars of claims of other employees suffering psychological injury from exposure as a dispatch officer in the period from 7 February 2009 to 9 February 2014;

C.     Documents created in the period from 1 - 7 February 2009, recording the planning for the expected volume of calls on 7 February 2009 (Black Saturday), including in relation to:

i.      Number of dispatch phones;

ii.      Number of operators on duty;

iii.      Rostered staff available and staff requirements on Black Saturday;

iv.      The utilisation of redundant telephones;

D.    Any reports prepared or commissioned or received by the Defendant in relation to its preparedness for the emergency call demands on Black Saturday;

F.   Employee Assistance Program(s) available to staff including the Plaintiff in the period from 7 February 2009 to 9 February 2014;

G.    Documents created in the period from 7 February 2009 to 9 February 2014 recording:

i.      The communication to employees in particular the Plaintiff;

ii.      The response from employees in particular the Plaintiff to; and

iii.      The adequacy of any such Employee Assistance Program(s) referred to in (f) above;

H.    Any reports prepared or commissioned or received by the Defendant in relation to any such Employee Assistance Program(s) referred to in (f) above following Black Saturday.

1. Ms Van Den Boogaard has subpoenaed the Employee Assistance Program as it is a separate organisation from ESTA, however she presses for discovery from ESTA of documents which fall outside the subpoena.

1. For the reasons that follow, I will allow the application for further discovery.

Relevant Principles

1. Rule 29.08 of the Rules provides that:

(2) Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating—

(a) whether that document or any, and if so what, document or documents of that class is or has been in that party’s possession; and

(b) if it has been but is no longer in that party’s possession, when the party parted with it and that party’s belief as to what has become of it.

(3) An order may be made against a party under paragraph (2) notwithstanding that the party has already made or been required to make an affidavit of documents.

1. The Civil Procedure Act 2010 (Vic) (‘CPA’) s 55 provides that a Court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.

1. Justice J Forrest considered the application of the CPA in Volunteer Fire Brigades Victoria v Country Fire Authority (Discovery Ruling):[1]

The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.

… the days of the search for the smoking gun are gone. The key is ensuring the discovery exercise is proportionate not only to the relevance of the issues, but also to the likely cost to be incurred bearing in mind that it is the trial that is the focus of the proceeding and not the discovery fight.[2]

[1][2016] VSC 573.

[2]At [34]–[36].

Category B Documents

1. Counsel for ESTA says that the compensation claims of other employees can have no relevance to Ms Van Den Boogaard’s claim and seeking those documents amounts to a fishing expedition.  ESTA says that at issue in this case is the duty that it owed to Ms Van Den Boogaard; and no other employee’s claim can be directly analogous or have relevance to that duty.  However, I consider that claims made by other employees who sustained similar injuries from similar circumstances may be relevant to an issue between the plaintiff and defendant.  Part of Ms Van Den Boogaard’s claim is that the defendant’s response to Black Saturday was inadequate and contributed to her injury.  ESTA’s knowledge that other people were suffering injuries arising from their experiences of Black Saturday, even some time after the events themselves, will go to its knowledge of the risk that Ms Van Den Boogaard was exposed to in the aftermath of Black Saturday, and will inform the standard of care owed by ESTA. 

1. I am satisfied that claims by other employees are relevant to ESTA’s knowledge of the risk to which Ms Van Den Boogaard was exposed in the aftermath of Black Saturday.  Discovery of these records is to be made, in a redacted format with identifying details of claimants removed.

Category C and D

1. Ms Van Den Boogaard says the documents in categories C and D are relevant to her claim that the defendants failed to adequately prepare for Black Saturday.  Her particulars of negligence allege that not all available dispatch phones were used, redundant stations that could have been used were not used, offers from other operators to provide relief to operators on duty were not accepted, insufficient support staff were available for operators, and there were insufficient staff to enable rest breaks to be taken during Black Saturday. 

1. ESTA says that the request is too wide or broad, onerous, not relevant and amounts to a fishing expedition.  Documents such as those itemised in category D would cover all aspects of call taking, well beyond the specific duties of the plaintiff.

1. After the hearing I provided ESTA with a further opportunity to put on any evidence by way of affidavit that would go to its claim that the application for discovery was too wide, onerous, oppressive, and voluminous.  An affidavit dated 27 September 2018 was filed on behalf of the defendant by Mr Danielle Black, solicitor for the defendant. 

1. In her affidavit Ms Black makes the following submissions:

·the documents sought are not relevant to any issue between the parties; or

·the defendant is unable to provide documents as the CFA is a separate body and the defendant does not have possession, power, or control over its documents; or

·the scope of discovery sought is too wide, onerous, oppressive and voluminous.

1. There is no evidence before the Court as to why discovery in any of the categories is onerous, oppressive, or voluminous.  The affidavit says that ESTA does not have custody or control of documents of the CFA but does not say that it has no documents of its own that fall within the discovery categories requested.

1. Reports into the preparedness of ESTA for Black Saturday would fall within the type of document that is typically discoverable and the request is limited to documents prepared or commissioned by ESTA and documents received by ESTA.  On the face of it, producing these documents does not appear onerous.

1. Whilst documents sought may go beyond the specific role that Ms Van Den Boogaard played on Black Saturday, it is clearly relevant to her case to examine the preparedness of ESTA beyond her function on that day.  Counsel described Ms Van Den Boogaard’s role as ‘but one cog in the wheel’.  In assessing whether ESTA was negligent, it may be necessary to examine ESTA’s preparedness in all areas that would impact on Ms Van Den Boogaard’s role.  Discovery in categories C and D should be made.

Category F, G and H

1. Counsel for ESTA submitted that, to the extent that documents about the Employee Assistance Program are within the possession of ESTA, the scope of the discovery request is too broad and goes well beyond the scope of the defendant’s dealings with the plaintiff.  Further, Black Saturday had been the subject of numerous inquiries, a Royal Commission, and a class action, and it would be unduly onerous on the defendant to have to provide all the various reports commissioned and received. 

1. Ms Black, in her affidavit, says that the Employee Assistance Provider is a separate body and the defendant does not have possession, power or control over their documents.  Further, she says that the documents sought are not relevant to issues between the parties and that the request is too wide.  The affidavit does not say that ESTA has no documents that fall within this category.  There is no evidence before the Court as to why providing the documents would be unduly onerous.

1. It is a central part of Ms Van Den Boogaard’s case that her injury was caused, not only by the events that unfolded on Black Saturday, but as a result of ESTA’s response to those events.  One of ESTA’s responses was to make available to employees a program of assistance.  Documents about that program, including any information that ESTA had about the adequacy of that program, are relevant to her claim and are discoverable documents. 

Orders

1. I grant the application for further discovery and will make orders that discovery in the categories identified should be provided.

1. The defendant is to pay the plaintiff’s costs of the application.  I will hear the parties about the appropriate time by which discovery should be made.

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