Bassindale v Western Sydney Area Health Service

CASES CITED : Stavert v Stavert [1998] NSWSC 487 Goulthorpe v State of New South Wales [2000] NSWSC 329

Mary Catherine Bassindale by her tutor The Protective Commissioner (Plaintiff) Western Sydney Area Health Service (1st Defendant) PARTIES : Susan Killalea (2nd Defendant) Stuart Kirkham (3rd Defendant) Ross Jeremy (4th Defendant)

COUNSEL : R. Ingram (Plaintiff) P. Carr (1st Defendant)

SOLICITORS : McClellands Lawyers (Plaintiff) Government Insurance Office of NSW (1st Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20040/05 MARY CATHERINE BASSINDALE by her tutor THE OFFICE OF THE PROTECTIVE COMMISSIONER v WESTERN SYDNEY AREA HEALTH SERVICE & ORS

JUDGMENT 1 HIS HONOUR: The plaintiff here has applied on notice of motion for an order that the first defendant answer the plaintiff's interrogatories. The plaintiff has interrogated the first defendant extensively and the first defendant has answered the majority of the interrogatories. There are, however, a number of interrogatories which the first defendant has declined to answer and there has been extensive and comprehensive argument before the Court as to whether the first defendant should be ordered to answer those remaining interrogatories to which objection has been taken. 2 It is necessary at the outset to record a brief outline as to the nature of the proceedings in which these outstanding interrogatories are sought. 3 The plaintiff was admitted to the Auburn Hospital on 23 February 2002 following a fall in which she sustained fractures of both wrists. The following day the plaintiff underwent surgery for reduction of the wrist fractures. Her case is that the surgery was undertaken at a time when the plaintiff was suffering the effects of an acute myocardial infarction of which the first defendant was aware or ought to have been aware, and it is contended that, having regard to this, the surgery should not have been undertaken when it was. The plaintiff suffered a stroke after surgery and it is contended this would have been avoided if the surgery had been delayed or cancelled until the myocardial infarction had been appropriately identified and treated. 4 The first defendant is sued as the body responsible for the conduct of the hospital and the plaintiff has also joined in the proceedings as second defendant the anaesthetist who attended her. The third defendant joined is the orthopaedic surgeon under whose care the plaintiff was and the fourth defendant joined is the physician or cardiologist who became involved in the plaintiff's case. 5 The second defendant and the third defendant have been interrogated and there is no outstanding issue concerning the interrogatories for those parties. The fourth defendant has been interrogated and it is expected answers to interrogatories directed to him will be forthcoming. 6 I record what has happened as to the second, third and fourth defendants as a matter of history only. 7 Under r 22.1 of the Uniform Civil Procedure Rules the Court may order any party to answer specified interrogatories at any stage of the proceedings. However, r 22.1(3) provides that in a case where damages are claimed for bodily injury "such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order." It is, of course, for the plaintiff here to prove the relevance of the interrogatories and the existence of special reasons. 8 In comprehensive written submissions, Mr Carr has identified the reasons why the first defendant submits that the order sought should not be made. It is submitted that special reasons for making the order have not been shown and the Court would not consider the interrogatories to be necessary. Mr Carr has submitted further that the interrogatories should be regarded as vexatious and oppressive, thus offending r 22.2 of the Uniform Civil Procedure Rules. He submitted that there is no necessity for an order to be made as answers to the interrogatories are not necessary in the interests of a fair trial: r 22.1(4). 9 Certain of the interrogatories to which objection has been taken are directed at what is contained in the surgeon's report in the first defendant's records. That report dated 23 February 2002 contains an entry "Cardiology consult. ASAP. ? subendocardial infarct". The first defendant was asked to identify the author of the entry and time at which the entry was written. No objection has been taken to those questions. However, the first defendant was then asked: "1(c) What did the writer think as to whether the plaintiff had suffered a possible subendocardial infarction? (d) If the writer thought that the plaintiff had suffered a possible subendocardial infarction, when did the writer first think that that was the position? (e) If the writer thought that the plaintiff had suffered a possible subendocardial infarction, when did the writer think that the possible subendocardial infarction had occurred?" 10 Then the first defendant was interrogated on entries in the progress notes from the hospital records dated 23 February 2002. The first defendant was asked to identify the author of the note and whether that person was a hospital employee and, if so, in what position. No objection was taken to those questions. The first defendant was then asked: "1(d) Did that person think that the ECG showed abnormalities? 2. If the answer to 1(d) is yes: (a) what abnormalities? (b) what did that person think was the condition causing those abnormalities?" 11 The notes proceed to record that Troponin was ordered. This prompted questioning as to who ordered Troponin blood level tests to be taken and whether that person became aware of the Troponin blood test results before the general anaesthetic was administered to the plaintiff on 23 February 2002. No objection was taken to that question, but then objection was taken to the following questions: "4. If the answer to 3 is yes: (a) of what did that person become aware? (b) what was the interpretation by that person of the significance, if any, of the results? (c) did that person think at the time that the results indicated that the plaintiff was suffering from a cardiac condition? 5. If the answer to 4(c) is yes, what did that person think the cardiac condition was?" 12 Then the first defendant was interrogated concerning an entry at 1230 hours on the progress notes. The first defendant was asked whether the author of the note reviewed the plaintiff's ECG prior to the plaintiff undergoing general anaesthetic. No objection was taken to that question but objection was taken to the following questions on that topic: "8. If the answer to 7(d) is yes: (a) did that person think that the ECG showed any abnormalities? (b) what did that person think was the condition, if any, causing those abnormalities?" 13 Then objection was taken to question 10 directed at Troponin blood level tests taken on 23 February 2002: "10 (b) What was the interpretation by that person of the significance, if any, of the results? (c) Did that person think at the time that the results indicated that the plaintiff was suffering from a cardiac condition? 11. If the answer to 10(c) is yes, what did that person think the cardiac condition was?" 14 The questioning moved on to a further hospital progress note on 23 February 2002 as to which the first defendant was asked: "14. If the answer to 13(d) is yes, did that person think that there were any abnormalities in the ECG?" 15 The first defendant was later asked if the person was aware of the Troponin blood test result before the general anaesthetic. No objection was taken to that question, but the first defendant was then asked: "17. If the answer to 16 is yes… (b) what was the person's interpretation at the time, if any, of the significance of the result?" 16 Objection was taken to these later questions (referring to an entry about an ECG on 23 February 2002): "21. …did that person think there were abnormalities in the ECG? 22. If the answer to 21 is yes, what, if anything, did that person think at the time was the condition causing those abnormalities?" 17 Objections were taken to questions 14, 17, 21 and 22. 18 The final group of questions to which objection was taken concerned the thought processes of Dr Shawli (incorrectly referred to as Dr Sean Li): "30. …did Dr Sean Li think that the plaintiff was suffering from a cardiac condition at the time? 31. If the answer to 30 is yes, what cardiac condition did Dr Sean Li think the plaintiff was suffering from?" 19 The questions to which objection has been taken are generally directed at the thought processes of the persons concerned. However, it does not necessarily follow from this that the interrogatories are objectionable, if they are directed at an issue or issues relevant to the plaintiff's claim. 20 Mr Ingram has submitted on behalf of the plaintiff that the questions are relevant as being directed at the first defendant's actual knowledge through its medical staff. The case as pleaded and particularised in the statement of claim is one in which the plaintiff will endeavour to prove that the first defendant was negligent in deciding to go ahead with the surgery when it knew or ought to have known of the recent myocardial infarction (para 20(d)) and when it knew or ought to have known that the plaintiff had an abnormal electrocardiogram reading (para 20(e)) and when it knew or ought to have known that the plaintiff was at risk of sustaining a cerebrovascular accident because of her cardiac condition (para 20(f)). 21 Mr Ingram submitted that the plaintiff's case was to be advanced on two bases:

(i) actual knowledge of matters by reason of which the surgery was contraindicated; and

(ii) knowledge that the first defendant ought to have had in the circumstances through the medical staff who were attending the plaintiff. 22 Mr Ingram submitted that the interrogatories were relevant to the proof of (i) and hence were relevant to an issue arising in the cause. 23 Mr Carr, on the other hand, submitted that what really mattered was whether or not the plaintiff had suffered a myocardial infarction before the surgery and whether this was established by test results. If so, it mattered not what the actual knowledge of staff was because the actual surgery should not have taken place when it did. 24 Having reflected on those competing submissions, it seems to me that the interrogatories are relevant to issue (i) that will arise at trial as identified by Mr Ingram (in 21 above). 25 This being so, the further questions arise: Have "special reasons" been shown and has the plaintiff established that the order sought is necessary, and this, of course, means "necessary in the interests of a fair trial": Boyle v Downs (1979) 1 NSWLR 192? 26 Mr Ingram submitted that there are special reasons for the purposes of r 22.1(3) and that the order sought is necessary in all the circumstances of this case. He submitted that what is sought to be elicited in the interrogatories is not addressed in the hospital records and it is not to be assumed that the authors of the notes would be readily available to the plaintiff. It was submitted that this was a fair way for the plaintiff to establish the actual knowledge of the persons concerned. 27 Rule 22.1 requires the applicant to prove there are special reasons why the order sought should be made. A party will not be ordered to answer interrogatories in the absence of special reasons. The meaning of "special reasons" in r 22.1(3) is not defined in the rule. 28 Are the reasons advanced by the applicant here, as addressed in [20] to [22] above and [26], special reasons? "Special"; conveys the notion of being out of the ordinary, extraordinary or exceptional. The Oxford Dictionary defines "special" as meaning "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree". The Macquarie Dictionary states the meaning: "of a distinct or particular character or purpose"; "being a particular one"; "particular, individual or certain"; "different from what is ordinary or visual"; "extraordinary, exceptional". 29 Master Malpass (as he then was) considered the expression in Stavert v Stavert [1998] NSWSC 487 in the context of Pt 23 r 5 of the Supreme Court Rules, concerned with the discretionary power to order discovery. The Master said as to the expression: "Each case is going to be determined having regard to its own particular circumstances. The task for the Court is to look at the material placed before it and determine whether or not 'special reasons' are present in that case." 30 Master Malpass applied the like approach in refusing discovery in Goulthorpe v State of New South Wales [2000] NSWSC 329, and I see no reason to depart from that approach here. 31 It is essential to consider precisely what the purpose is for which the respondent is here sought to be interrogated. Put shortly, the plaintiff asserts the need because without answers to the questions she seeks to have addressed she will not be in a position to prove the actual knowledge asserted in the statement of claim as referred to above. 32 Liability is denied in the defence filed by the respondent and the respondent has denied all the allegations contained in para 20 of the statement of claim, and, of course, this includes denying that:

(i) it decided to proceed with the surgery and general anaesthetic at a time when it knew or ought to have known of the plaintiff's recent myocardial infarction (Particular (d) under para 20 of the statement of claim); and

(ii) it decided to proceed with the surgery and general anaesthetic when it knew or ought to have known that the plaintiff had an abnormal electrocardiogram reading (Particular (e) under para 20); and

(iii) it proceeded with the surgery and general anaesthetic when it knew or ought to have known that the plaintiff was at risk of sustaining a cerebrovascular accident because of her cardiac condition (Particular (f) under para 20). 33 As earlier indicated, I am satisfied as to the relevance of the interrogatories sought to be administered and here under challenge, and I am also satisfied having considered the submissions advanced by Mr Ingram that "special reasons" have been shown for ordering that answers be given to the interrogatories in question. I am also satisfied that the order sought is necessary in the interests of having a fair trial on the issues arising on the pleadings. 34 This leaves the question of costs. Mr Carr submitted that it was not until the matter was fully argued on Friday that the plaintiff asserted what was relied upon as the necessary special reasons. By letter dated 18 May 2006 the respondent's solicitors sought to have the special reason identified: "You have not identified the special reason for seeking the order to administer interrogatories. I invite you to do so having special regard to the onerous burden you will place upon our client in responding to the draft interrogatories." 35 The above was an entirely reasonable and proper request. The response by letter dated 29 May 2006 asserted the need to know but not the reason for such need as disclosed in submissions on Friday last. 36 It seems to me highly desirable where a claim for damages arising out of bodily injury is being pursued that the "special reasons" for seeking an order for interrogatories are disclosed to the party to whom the request for answers is being made. The opposing party is entitled to know what the reasons asserted are in order to decide whether to answer or not. In my opinion a failure to advance "special reasons" claimed is a consideration relevant to the appropriate costs order should a motion for interrogatories be pursued. 37 I consider in the circumstances of this case since the "special reasons" were not fully disclosed upon request that the appropriate order as to costs is that they should be costs in the cause.

Formal orders 38 1. That the first defendant answer the balance of the interrogatories sought by the plaintiff and to which answers have hitherto not been given.

2. Costs of the motion are to be costs in the cause. **********

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