Ahmad v South Western Sydney Local Health District [2018] NSWSC 1327 | Case summary

Legal principles

Rule 22.1 UCPR provides: 22.1 Interrogatories (cf SCR Part 24, rules 1-6; DCR Part 22A, rules 1-6) (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 (b) a claim for contribution in relation to damages so arising, 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. …
Rule 22.2 provides: 22.2 Objections to specific interrogatories (cf SCR Part 24, rule 6 (3)) A party may not object to being ordered to answer an interrogatory except on the following grounds: (a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order, (b) the interrogatory is vexatious or oppressive, (c) the answer to the interrogatory could disclose privileged information.
Since this is a claim for damages for personal injury the plaintiff must show in accordance with r 22.1(3) that there are special reasons why interrogatories should be allowed and must show that it is necessary for the order to be made.
In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498 Garling J said: [50] Whilst it is clear that "special reasons", as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006, unreported) at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126] to [128] per Johnson J; Keating at [24]; Boscolo at [18] per French J (as his Honour then was). [51] Typically, but not exclusively, what will take the matter "out of the ordinary" is: (a) an inability to obtain the requisite factual material without the exercise of the discretion; (b) that the applicant is in a position of some disability or disadvantage; (c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant; (d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised. [52] In addition, as with all questions of discovery, an issue of relevance must be satisfied, namely that the material sought to be discovered, and the answers to interrogatories will relate to a fact in issue. There are also other discretionary considerations.
In Edwards v Hornsby Shire Council [2014] NSWSC 600, a case where personal injury damages were claimed, Schmidt J said: [16] The question of necessity must be approached as meaning "reasonably necessary for the disposing fairly of the cause or matter" or "necessary in the interests of a fair trial" (see Boyle v Downs [1979] NSWLR 192 at 205 per Cross J and Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 at 292 per Rath J). [17] Further, as discussed by Ward J in In the matter of Gerard Cassegrain & Co Pty Ltd - Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 at [27] and [31]: "[27] Where the interrogatories seek information "within the knowledge of the defendants", it might be expected that the test of necessity will be readily satisfied (as it was, for example, in Keating v South East Sydney Illawarra Area Health Service). ... [31] In Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758 Cole J said, of the principles applicable regarding interrogatories, (at [762]): 1. The object of interrogatories is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it": Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 111; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 at 518. 2. Generally speaking, a party may interrogate his opponent as to every relevant matter on which he could examine him, if he thought fit to call him as a witness at the trial: Lyell v Kennedy (1883) 8 App Cas 217 at 234; Hawkes v Schubach [1953] VLR 468 at 471; Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 at 709." [18] It is no answer to a proposed interrogatory that a document produced on subpoena deals with the topic or that a specific question is answered by the content of the document. Answers which are sought by the interrogating party must be material in the sense that they may enable that party to maintain its case and may be pursued, even if they destroy the opponent's case. A party is also entitled to seek admissions. As Ward J also discussed at [26]: "It is recognised that a legitimate purpose of interrogatories is that the answers will inform the plaintiff as to evidence to be obtained and may save the expense of proving part of its case (Attorney-General v Gaskill (1882) LR 20 Ch D 519 at 527 per Jessel MR, applied in Taylor v Santos Ltd [2000] SASC 305 and Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 2) [2008] WASC 204)."

The disputed interrogatories

It should first be said that I consider that special reasons exist for the administering of interrogatories generally in this case. The matters referred to in sub-paragraphs [51] (a), (c) and (d) of Ahmed El Hayek all have relevance in the present case. I have also had regard, in reaching the views set out below, to what Hall J said in Keating v South East Sydney Illawarra Area Health Service (Supreme Court (NSW), Hall J, 7 July 2006, unrep) at [13] to [18] concerning the importance of having information at an early stage, especially in medical negligence cases, to ensure a level playing field and for minimising costs.
Where I have concluded that an interrogatory should be answered, I have done so bearing in mind what Schmidt J said in Edwards regarding the interrogatory being necessary.
I will now deal with each of the disputed interrogatories in turn, using the amended form put forward at the hearing of the motion. 1Q. Prior to obtaining the Plaintiff's consent to the performance of a laparoscopic cholecystectomy on 18 December 2014, was anything said by the Defendant by way of advice to the Plaintiff concerning the proposal to perform surgery and if so, for each occasion such advise was given: (a) Specify who, on behalf of the Defendant, provided the said advice; (b) When was the advice given? 1A. The Defendant objects to answering the interrogatory. What was said by the Defendant to the Plaintiff was/would be within the knowledge of the Plaintiff.
In my opinion, the objection taken is not a proper one. A party may only object to answering an interrogatory on one of the three grounds set out in r 22.2. Further, in In the matter of Gerard Cassegrain & Co Pty Ltd - Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241, Ward J (as her Honour then was) said: [34] Relevantly, for the purpose of considering some of the objections made the present application (sic), whether the interrogating party can prove the matter in question by some other means has been said not to be a ground for refusing the interrogatory (Lyell v Kennedy (1883) 8 App Cas 217 at 228; James v Davies (1883) 9 VLR (L) 140). In Lyell, in the House of Lords, the Lord Chancellor at 228 said: It is no sufficient objection that the plaintiff may have, and to some extent (on his own shewing) has, other means of proving the facts inquired after. Admissions of facts by the defendant might simplify the proof and materially diminish the expense of trial. [35] Mr Ashhurst submits that there would seem to be no authority to support the proposition that an interrogatory is not necessary either because the party who is being interrogated intends to give evidence or alternatively that there are other witnesses than the interrogated party who could give evidence regarding the fact in issue. I have similarly been unable to find any. Indeed, the opposite seems to be the case. In James v Davies, where the interrogatories sought to be administered related to an action for seduction and the objection was that the court would not exercise its discretion to allow interrogatories in favour of a party who already has the information (especially when the answers might affect the moral character of the other party), Williams J (with whom Holroyd J and Stawell CJ concurred) said: The principal objection raised is that the plaintiff has already the knowledge or means of knowledge of which he seeks. That was a good objection at one time, but it is no longer so. Though the plaintiff may have that information, he may wish to have it corroborated; and he cannot have that better than out of the defendant's own mouth; it might relieve him from the necessity of calling several witnesses (my emphasis)
It is also clear that particulars (a), (b) and (c) allege a failure to provide appropriate advice prior to the operation. The defendant, in its written submissions, says that it is oppressive to answer that question because of the width of the enquiries that would need to be made, and difficulties with recollecting events that occurred so long ago. However, the proceedings were brought within time, and the need for the question arises by virtue of the absence of adequate notes made at the time, as the experts have observed.
In my opinion, this question should be answered. 3Q. As at the date of the performance of the procedure, set out in detail the training which by then had been received by the principal surgeon in the performance of: (a) Laparoscopic cholecystectomy; (b) Open cholecystectomy; (c) Open cholecystectomy using the fundus down approach; (d) Cholecystectomy of an intrahepatic gallbladder. 3A. The Defendant objects to answering the interrogatory. The training of the principal surgeon is not put in issue by the particulars of negligence and is irrelevant to any fact/matter in issue. 4Q. As at the date of the performance of the procedure, set out the approximate number of occasions the principal surgeon had performed, as a principal surgeon, if any: (a) Laparoscopic cholecystectomy; (b) Open cholecystectomy; (c) Open cholecystectomy using the fundus down approach; (d) Cholecystectomy of an intrahepatic gallbladder. 4A. The Defendant objects to answering the interrogatory. The number of operative procedures/cholecystectomies carried out by the principal surgeon is not relevant to any of the pleaded particulars of negligence and is irrelevant to any fact/matter in issue.
In his report of 23 May 2016 Professor Richardson said (at p.10): Often the more junior staff have little experience in performing open cholecystectomies. He also said (at p.13): The procedure was performed by Dr Lim. I do not know what seniority or level of experience Dr Lim had. It does not appear that he (sic) was a consultant surgeon as advice was sought from Dr Ooi who is a consultant surgeon, intraoperatively. … I would have a number of criticisms of the conduct of the operative procedure: (a) Lack of involvement of a more experienced surgeon. … I do not know what experience Dr Lim had in performing an open cholecystectomy for acute cholecystitis. Bankstown Hospital is a large teaching hospital with experienced sub-speciality surgeons in hepato-biliary surgery who could have been called on for assistance. … In my opinion it is indefensible that a more experienced surgeon was not called to be involved when the decision to convert to an open procedure was made. An open cholecystectomy for acute cholecystitis is a difficult and uncommon procedure and there is a significant risk of injury to the bile duct.
Those comments of Professor Richardson make highly relevant the experience of Dr Lim in carrying out the procedures identified in the interrogatories. Simply knowing, as interrogatory 2A(b) discloses, that Dr Lim was a Senior Registrar with FRACS in her first year post fellowship does not give the sort of information that Professor Richardson clearly needs to provide an opinion about whether it was appropriate for Dr Lim to continue with this operation in the absence of either a more experienced surgeon, or a sub-speciality surgeon, being present. When there is no dispute that Dr Lim transected the common bile duct, the answers to these interrogatories are necessary and should be provided. 5Q. Set out in detail exactly what steps were taken by the principal surgeon in the performance of the procedure including (but not limited to): (a) What dissection plane(s) were used (by reference to the gallbladder and/or liver) (and if the dissection plane varied, include this in your answer); (b) What steps were taken to identify the cystic duct; (c) What steps were taken to identify the cystic artery; (d) What steps were taken to identify the common hepatic duct; (e) What steps were taken to identify the common bile duct? 5A. (a)-(d) The Defendant objects to answer the interrogatory. The steps taken by the principal surgeon in the performance of the procedure do not relate to any matter in issue, is vexatious or oppressive and is unnecessary. (I will assume that the defendant would equally object to answering 5A(e).)
In his report dated 23 May 2016 Professor Richardson said (at p.13): There are a number of well described techniques to avoid damage to the bile duct during cholecystectomy. Firstly, at the time of laparoscopic cholecystectomy it is important to achieve what is called a critical view of safety. This is where all of the tissue is dissected in the cholecystohepatic triangle so that there are two and only two structures entering the gallbladder-these are the cystic duct and cystic artery. If the procedure is converted to an open procedure this requirement should still be met. There is no evidence in the operation report that this was done. Additionally, at the time of open cholecystectomy it is mandatory to delineate the junction of the cystic duct with the common hepatic duct. There is no evidence from the medical record that this was done. There is no evidence in the medical record that Rouviere's sulcus was identified - this may be particularly useful to prevent bile duct injury in the difficult cholecystectomy. Because of these failures Dr Lim mistook the common bile duct for the cystic duct and divided the common hepatic duct thinking it was the cystic duct. The most common reason for damage to the bile duct is that the surgeon does not check the anatomy appropriately and the common bile duct/common hepatic duct is mistaken for the cystic duct.
It is difficult to accept the defendant's objections. The significant matters in the extract above are the lack of evidence from the operation report about what was done. That is a critical matter for determining whether or not the duct was transected with or without negligence. The expert report makes those matters relevant. Since there is a defence pleaded in reliance on s 5O of the Civil Liability Act 2002 (NSW), I must assume the defendant will lead evidence. The way the operation was performed will have to be disclosed. It is hard to see, in those circumstances, how it is oppressive to do it now.
This interrogatory should be answered. 6Q. During the fundus down dissection did the surgeon have knowledge as to what tissue or organ he was dissecting? If so, what was that organ/tissue and set out the basis of that knowledge; 6A. The Defendant objects to answering the interrogatory. Whatever organ the surgeon had "knowledge" she was dissecting, her "knowledge" is irrelevant to the standard of care of operative treatment. 7Q. During the fundus down dissection did the surgeon have a belief as to what tissue or organ he was dissecting? If so, what was the organ/tissue, and set out the basis of that belief? 7A. The Defendant objects to answering the interrogatory. Whatever organ the surgeon had "a belief" she was dissecting, her belief is irrelevant to the standard of care of operative treatment.
I do not understand the basis for the asking of these questions. As far as I can understand the procedure, what was being dissected was the gallbladder. There is no suggestion that any of the specifically identifiable parts such as the cystic duct, the cystic artery, the hepatic duct or the common bile duct should be dissected. In that way, any answers to these questions would not provide any information that was useful for determining the question of negligence. 8Q. At any stage prior to the termination of the procedure, did the Defendant consider it may have transected the common hepatic duct? 8A. The Defendant objects to answering the interrogatories. Whatever the Defendant "considered" including whether it may have transected the common hepatic duct at any stage prior to the termination of the procedure is irrelevant to any matter in issue.
I do not understand where this question leads. It seems inconceivable that Dr Lim would have considered that she may have transected the common bile duct when nothing appears in the operation notes to that effect, nor is there any evidence that she acted in any way that would suggest she did consider that she had done that. If she had so considered, I would have expected either that a more experienced surgeon would have been called in or she would have attempted to rectify the situation herself. There is no assertion that she deliberately covered up any such error that she made. I would disallow this interrogatory. 9Q. Did the principal surgeon consider arranging for the performance of intra-operative cholangiography? if so, at what stage of the procedure and for what clinical reason did he consider arranging the performance or an intra-operative cholangiography? 9A. The Defendant objects to answering the interrogatory. Whether or not the principal surgeon considered arranging for the performance of intra-operative cholangiography is irrelevant to any pleaded matter in issue. The failure to undertake an operative cholangiogram is pleaded not a failure to consider it. 10Q. For what clinical reasons did he decide not to arrange the performance of an intra-operative cholangiography? 10A. The Defendant objects to answering the interrogatory. The reasons the principal surgeon did not arrange an intra-operative cholangiography are irrelevant to any factual matter concerning whether or not an intra-operative cholangiography should have been arranged.
In his report of 23 May 2016 Professor Richardson said (at p11): In many hospitals, operative cholangiography which is where dye is injected into the bile duct to delineate all of the anatomy, is done routinely. This is to exclude stones in the bile duct and is also done to check the anatomy. It is controversial as to whether this prevents bile duct injuries, but it is generally accepted that this should be done if there is any concern about the anatomy or if the case is more difficult than normal. It is also generally accepted that a cholangiogram is more likely to delineate a potential bile duct injury earlier which can lead to early repair and often better results. He also said (at p.14): Even if routine cholangiography is not performed Mr Ahmad's operation mandated it in my opinion. It was a difficult case and the gallbladder was said to be intrahepatic which is certainly with more difficulty in identifying the anatomy and may be associated with aberrant anatomy. I would be critical of the staff at Bankstown Hospital for not performing an operative cholangiogram in this difficult situation.
The only particular of negligence relevant to these interrogatories is particular (d) which asserts a failure to undertake an operative cholangiogram. The defendant correctly asserts as the reason for not answering question 9 that there is no pleading of a failure to consider using intraoperative cholangiography. Indeed, it is difficult to see where an answer to that question would lead. The correct enquiry is the one that question 10 asks, namely, for what clinical reasons was intraoperative cholangiography not performed.
That question is a reasonable one because Professor Richardson seems to suggest that it is not done routinely in all hospitals and it is controversial as to whether it prevents bile duct injuries. It is possible that there was some clinical reason or reasons for not using it. An answer to this question is likely to limit the issues in dispute because if some clinical reason is offered, that may be accepted by the experts as a sufficient justification. For these reasons I disallow question 9, but question 10 should be answered. 12Q. Was there a discussion(s) during the procedure concerning the Plaintiff between surgical staff involved in the procedure with Dr Ooi and if so, for each such discussion: (a) At what stage in the procedure did that occur; (b) Who on behalf of the Defendant spoke to Dr Ooi; (c) What was said by the person making the call to Dr Ooi; (d) What was said by Dr Ooi. 12A. The Defendant objects to answering the interrogatory. Discussions between surgical staff involved in the procedure and Dr Ooi (from whom advice was sought intra-operatively) are irrelevant to the standard of care or the appropriate operative steps required during the cholecystectomy.
The defendant's objection is that the discussions between the doctors are irrelevant to the standard of care or the appropriate operative steps required during the operation. In circumstances where it is the Hospital that is being sued and not the operating surgeon, the whole issue of appropriate supervision by senior medical staff is a relevant issue in relation to the carrying out of the operation. The fact that Dr Lim needed to seek advice from Dr Ooi in the middle of the operation suggests that she needed some expert assistance about what to do at the stage the operation had reached and, possibly, how then to proceed. Where the experts have indicated that an open cholecystectomy in these circumstances is a difficult operation, what was asked by Dr Lim and what was said by Dr Ooi is most relevant to the standard of care being provided by the Hospital.
Any discussions are also likely to be relevant to the s 5O defence. In the first place, Dr Lim was probably acting entirely in accordance with proper professional practice in seeking advice from a more senior colleague. But what was asked and what advice was given may also be determinative of that defence, partly because the operation was being performed on the hospital's behalf by Dr Lim, and partly because the hospital is the defendant in the proceedings, and the arrangements it has in place between professional staff is relevant to that defence.
This interrogatory should be answered. 13Q. Set out the approximate number of occasions Dr Ooi had performed, in the role of principal surgeon: (a) Laparoscopic cholecystectomy; (b) Open cholecystectomy; (c) Cholecystectomy of an intrahepatic gallbladder. 13A. The Defendant objects to answering the interrogatories. The number of occasions Dr Ooi had performed in the role of principal surgeon a laparoscopic/open cholecystectomy or a cholecystectomy of an intrahepatic gallbladder is irrelevant to any standard of care provided.
For similar reasons to those I gave with respect to question 12, Dr Ooi's experience in carrying out the procedures listed is relevant to the standard of care that was provided to the plaintiff at the Hospital. That is particularly so where Professor Richardson has said that Bankstown Hospital has experienced sub-speciality surgeons in hepato-biliary surgery who could have been called on for assistance. Dr Ooi's experience is therefore a relevant consideration when he was the doctor approached by Dr Lim during the operation. This interrogatory should be answered.

Ahmad v South Western Sydney Local Health District

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (9)

Cited By (1)