Procedure - Discovery and interrogatories - Discovery and inspection of documents - Discovery of documents - Orders for further and better discovery - Claim of negligence during surgical operation - Hospital records as to similar incidents during similar operations.

Compagnie Financiére du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, applied.

Judgment Number: [2011] TASSC 1

1 The plaintiff has applied for an order under the Supreme Court Rules 2000, r388, for the second defendant to make further discovery. The action relates to a surgical procedure in June 2009 when the first defendant, Mr Alsaffar, in the course of removing the plaintiff's gall bladder, inadvertently damaged the plaintiff's common bile duct. Those facts are admitted on the pleadings. There is a dispute as to whether the surgeon was negligent. The State has been joined as a second defendant on the basis that it is vicariously liable for any negligence on the part of the surgeon, and on the basis of a non-delegable duty of care having been breached.

2 The operation was performed at the North West Regional Hospital in Burnie. The plaintiff contends that records may exist as to other operations performed by the same surgeon at that hospital when other patients' common bile ducts were severed. He is seeking an order for discovery on oath of records of any such incidents during the three years before his operation, and at any time after his operation. The State contends that any such documents are not sufficiently relevant for discovery to be ordered.

3 Under r388(1), I may make the order sought if it appears to me "that there are grounds for a belief that a document or class of document relating to any question in a proceeding may be or may have been in the possession of a party". The test of relevance is to be found in r386(1)(a), which provides for discovery of documents "that relate to any matter in question in the proceeding". The test of whether a document relates to a matter in question in the proceeding is to be found in the dictum of Brett LJ in Compagnie Financiére du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63, where his Lordship said this:

"It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary."

4 It appears to me that there are grounds for a belief that the hospital in question has records as to other operations during which the same surgeon severed common bile ducts. On 22 June 2010 the plaintiff's solicitors wrote to the defendants' solicitor requesting discovery of "the records of any other cases prior to the cause of action arising in which the common bile duct has been severed by surgeons at the North West Regional Hospital", limiting their request to a period of three years before the plaintiff's operation. The plaintiff's solicitors wrote to the solicitor for the defendants on 5 July 2010 asserting that there were four such incidents after the plaintiff's operation, and requesting discovery of the relevant records. The defendants' solicitor wrote back on 13 September 2010 saying, "... I am instructed that the records of the North West Regional Hospital concerning the matters you have referred to in your letters of the 22nd of June 2010 and the 5th of July 2010 are not relevant to the matter(s) in issue." It was not asserted that such records did not exist.

5 Mr Phillips submitted on behalf of the plaintiff that the records of similar incidents were relevant for the following reasons:

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That they were likely to contain information that would tend to rebut a defence of accidental injury.

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That they were likely to contain information that would tend to show that the management of the hospital was negligent in failing to control the surgeon by stopping him from performing operations involving a risk of the common bile duct being severed.

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That the records were likely to contain information in the nature of admissible "similar fact" evidence.

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That the records were likely to contain information that would advance a claim for exemplary damages.

6 I can dispose of the second of these contentions very quickly. Although the statement of claim contains an allegation to the effect that the management of the hospital breached a non-delegable duty of care, there is nothing in that pleading or the relevant particulars alleging negligence in failing to control or supervise the surgeon. Since the pleadings have not raised any such issue, information in the records relevant to such an issue cannot make them discoverable.

7 In his submissions as to similar fact evidence, Mr Phillips relied on a number of cases in which questions of causation were in issue. In Board v Thomas Hedley & Co Ltd [1951] 2 All ER 431, discovery was ordered of documents tending to show that persons other than the plaintiff had contracted dermatitis after using a particular cleaning product. Hales v Kerr [1908] 2 KB 601 concerned evidence that individuals other than the plaintiff had contracted infectious diseases after being shaven by a barber who had a practice of using razors and appliances that were dirty and unsanitary. Blakeborough v British Motor Corporation Ltd (1969) 113 SJ 366 concerned records of Morris 1100 and Austin 1100 vehicles becoming uncontrollable. In my view those cases are all distinguishable because, in this case, the plaintiff does not contend that the records in question are likely to advance his case as to the causation.

8 The significant allegations in the statement of claim, none of which are admitted, are as follows:

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That, during the operation, the surgeon could not visualise the common bile duct.

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That he failed to properly identify ductal anatomy during the operation.

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That he failed to perform a cholangiogram when he knew he could not view the common bile duct without one.

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That he persisted with the operation when he knew or ought to have known that it was unsafe to do so.

9 Essentially, the plaintiff contends that the surgeon was negligent in going ahead with an operation when he could not properly see what he was doing, despite a risk that he might damage the common bile duct. The plaintiff contends that the surgeon was as negligent as a motorist driving in a thick fog when he could not see beyond the end of his bonnet.

10 In my view it is reasonable to suppose that the records of which discovery is now sought may contain evidence that the surgeon had a tendency to proceed with total gall bladder removal operations when unable to view the common bile duct, possibly without cholangiograms, and to damage ductal structures as a result. If the records in question provide evidence of such a tendency, that evidence is likely to be admissible as tendency evidence in accordance with the Evidence Act 2001, s97. Any such evidence could tend to prove that, at the time of the plaintiff's operation, the surgeon ought to have known that it was unsafe to proceed in such circumstances, and that is an allegation made in the statement of claim. Further, bearing in mind that it is admitted that the surgeon inadvertently damaged the plaintiff's common bile duct, any such evidence could tend to prove that, at the time of the plaintiff's operation, the surgeon could not visualise the common bile duct, another assertion made in the statement of claim. (The surgeon has admitted in an answer to an interrogatory that he could not visualise the plaintiff's common bile duct, but no admission to that effect has been made by the State.)

11 In my view it follows that the Peruvian Guano test is satisfied, and that the records in question are relevant and discoverable for the purposes of rr386(1)(a) and 388.

12 Having reached that conclusion, there is no need for me to address counsel's arguments as to the possibility that the records in question might support a claim for exemplary damages. Exemplary damages have not been claimed in the statement of claim, but they do not need to be: Broome v Cassell & Co Ltd [1971] 2 QB 354; Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 per Lord Hailsham at 1083. However the facts upon which a claim for exemplary damages is based must be adequately pleaded: Magna Alloys & Research Pty Limited v Ten-Haaf (No 2) unreported 41/1980 Green CJ at 28. Whether the factual basis for a claim for exemplary damages has been adequately pleaded in this case, and whether the records in question might enable the plaintiff to advance such a claim, are matters that I need not determine.

13 For the reasons stated, I will make orders in the terms sought by the plaintiff.