CHONG v NGUYEN

CATCHWORDS : Professional negligence - State of mind interrogatories - Objections to Interrogatories - Whether interrogatories where necessary for fair trial - Meaning of "necessary"

Boyle v Downs [1979] 1 NSWLR 192 Shutt v Queenan [2000] NSWCA 341 CASES CITED : Griebart v Morris [1920] 1 KB 659 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435

Plaintiff - Gek Ngor CHONG PARTIES : Defendant - Hung Trung NGUYEN

Plaintiff - Mr D Graham COUNSEL : Defendant - Mr S Woods

Plaintiff - McLaughlin & Riordan SOLICITORS : Defendant - David Ian Brown

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2004/20082 GEK NGOR CHONG v HUNG TRUNG NGUYEN

JUDGMENT 1 HIS HONOUR: On 17 February 2000, the plaintiff, Gek Ngor Chong, went to a doctor, the defendant Hung Trung Nguyen, complaining of tiredness and weight gain. After that date, Ms Chong consulted Dr Nguyen on a number of occasions expressing on each occasion the same or similar complaint. 2 Dr Nguyen sent Ms Chong for certain blood tests over the period 18 February 2000 to 1 November 2001 during which time Dr Nguyen diagnosed Ms Chong as suffering, at least, from depression. 3 Dr Nguyen did not diagnose or prescribe treatment for any kidney disease or condition until 20 February 2001 or later. 4 On 1 November 2001 Ms Chong suffered renal failure and on 6 November 2001 underwent a renal biopsy at Liverpool Hospital which, it is said, demonstrated a severe long-standing IgA nephropathy. 5 On 23 March 2004 Ms Chong commenced these proceedings claiming damage for alleged negligence of Dr Nguyen for failing to diagnose or treat the kidney condition within a reasonable time. 6 Since 23 March 2004 there have been various amendments to the pleadings and Ms Chong now relies on a Further Amended Statement of Claim filed on 19 April 2005 from which the above recital is taken. It does not matter, at this stage or for the purpose of the current proceedings, whether all of the above withstands the burden of proof on Ms Chong. The above is reiterated for the purpose of stating the necessary background for the motion with which I am now dealing. 7 On 3 November 2004 the Court ordered the defendant, Dr Nguyen, to answer interrogatories. The plaintiff, Ms Chong, now alleges that some of the interrogatories have not been answered which allegation is admitted but defended on the basis that the questions asked are impermissible. In order to deal with the issues raised in the motion now before the Court, it is necessary to deal briefly with the principles that inform the exercise of the Court's power to order a party to answer interrogatories. These proceedings continue to be dealt with under the Supreme Court Rules, rather than the Uniform Civil Procedure that came into force on 17 August 2005. 8 The issues required to be addressed include whether the order to answer the unanswered questions is necessary and whether the questions seek, impermissibly, answers that go to the state of mind of the person being interrogated.

Is the Order Necessary? 9 The order made by the Deputy Registrar on 3 November 2004 did not specify the question or questions that could be asked but gave leave to serve interrogatories that were unspecified. The order reserved to the defendant all rights to object to any question. This proceeding being a claim for damages arising from personal injury the former Supreme Court Rules Part 24 Rule 1 did not apply and the mere serving of notice, without leave, does not require answers. Part 24 Rule 5 envisages an order requiring an answer to interrogatories. The current order, made by consent, requires the defendant to answer unspecified interrogatories. It is, therefore, necessary for the Court to consider now whether the order to answer is necessary. The alternative, given that the Notice was dated 30 September 2004, is that the Defendant has already conceded the necessity. 10 The practice has been to treat Part 24 Rule 5 as requiring consideration of the issue whether the interrogatory is necessary. A strict reading of the rule requires the Court to be satisfied that the order requiring an answer is necessary. In situations where a valid notice had been served under Part 24 Rule 1 and there was a refusal to answer, then, subject to any objection to the question, the order would always be necessary. 11 Where Part 24, Rule 1 does not apply the Court must consider whether the order is necessary and must, therefore, consider whether an order requiring the interrogated party to answer each of the interrogatories is necessary. 12 There has been some debate about the requirement for the question to be "necessary". Most often reference is made to Boyle v Downs [1979] 1 NSWLR 192 at 204-5. The Court (Cross J) there confirmed that the word "necessary" was to be interpreted as meaning "necessary for a fair trial".

His Honour said: "In considering the meaning of the word 'necessary' in Part 23 Rule 14 - a rule relating to discovery and inspection similar to Rule 5 in Part 24 relating to interrogatories - Rath J in Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 interpreted it as 'necessary in the interests of a fair trial'. This definition is similar to the one I have suggested; for in Griebart v Morris [1920] 1 KB 659, Scrutton LJ interpreted 'necessary for disposing fairly of the cause or matter' (under the English rules relating to interrogatories) as 'necessary for the fair trial of the action'." 13 The Court of Appeal has referred with authority to that passage in Schutt v Queenan [2000] NSWCA 341 at [11], [12], [13], [14] and [15]. His Honour the President said: "The answers which are sought are material in the sense that they may enable the claimant either to maintain her own case or to destroy the case put against her (see Griebart v Morris [1920] 1 KB 659 at 664). 14 While other views have been expressed at various levels of the judicial hierarchy, the overwhelming authoritative view is that the Court must be satisfied that the order is "necessary in the interests of a fair trial". 15 It is, in this case, essential in light of the arguments pressed, to examine the meaning of the word "necessary" in that context. 16 The word "necessary" when used in relation to a requirement on the exercise of a power granted to a court should generally and does here mean "reasonably required or legally ancillary" to the achievement of the goal, in this case, of a fair trial. I refer to the joint judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 which, while determining whether there was a valid basis for contempt proceedings, examined the power of the District Court to issue injunctive relief. They said: "The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker (1849) 3 Ex 242, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Division 4 of Part 3 of the District Court Act . In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness' ( State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 477 at 452)." (my emphasis) 17 I therefore test each question subject to the objection in these proceedings by that standard.

The questions to which objection is taken 18 The interrogatories served ask 17 questions a number of which have multiple sub-questions. The objections have been confined to 5 questions. The parties and their legal representatives are to be congratulated on their cooperation. 19 There was in the Notice of Motion reference also to question 7 in the interrogatories but that issue was not pressed by the Plaintiff who conceded the adequacy of the answer given.

State of Mind Interrogatories 20 The objection by the Defendant to answering a number of the questions turns on the characterisation of the question as one seeking the state of mind, purpose or motive of the Defendant. 21 While questions going to the state of mind of the party being questioned are usually impermissible, this is because the state of mind of a party in a civil proceeding is usually irrelevant to the issues in the proceeding. In defamation, or any proceeding, where malice, may be relevant, or, for example, in the economic torts where purpose may be relevant interrogatories going to those issues are the norm. There is no special category of objection to questions going to purpose or state of mind, the issue will be resolved, as it is with questions going to any issue, on the basis of whether the answer to the question relates to the issues between the parties.

Particulars of Negligence 22 The particulars of negligence pleaded in the Further Amended Statement of Claim include: "(a) Failing to attach significance to the blood test results of 18 February 2000 by (i) considering the possibility of renal disease … (b) Attributing the plaintiff's ongoing symptoms and signs to depression and marital problems when he knew or ought to have known that such symptoms and signs when considered in conjunction with the blood test abnormalities of 18 February 2000, 7 November 2000, 12 December 2000 and 19 January 2001 were suggestive of renal failure; (c) Failing to consider a urinary tract infection as a possible cause for the blood test abnormalities present on 18 February 2000, … (g) Considering the plaintiff to have a B12 deficiency when the full blood count results … provided no evidence of such a deficiency; (h) Considering the plaintiff to have an iron deficiency when the full blood count results … failed to disclose any abnormality supporting such a diagnosis; (i) Considering the plaintiff's anaemia to be caused by her vegetarian diet … when there was little or no evidence supporting such a connection; (j) Misinterpreting the blood test results … (k) failing to attach significance to the blood tests … by considering the possibility of renal disease; (l) failing to consider a urinary tract infection as a possible cause … (y) failing to diagnose, or take steps to ensure the diagnosis of, renal disease …" 23 There are other relevant particulars but mostly such particulars repeat the above with reference to different consultations, different medical tests or different symptoms. 24 As can be seen from the particulars of negligence recited above, Ms Chong seeks to proceed, at least in part, on the basis that Dr Nguyen should have, but did not, consider the possibility of kidney or urinary tract issues. This Ms Chong seeks to do by seeking to show that the tests performed or symptoms displayed or both ought to have alerted, but did not, Dr Nguyen to the possibility. 25 In framing her case in the manner she has, Ms Chong asserts either that Dr Nguyen should have known but did not, that the symptoms and/or tests were consistent with kidney problems and thereby was in breach of his duty of care to her. 26 Alternatively, Ms Chong asserts that to the extent that Dr Nguyen was aware of the possibility of kidney problems, he was negligent in not referring her to a specialist and/or treating her for the problem. 27 The manner of framing the claim leads inexorably to the proposition that the state of knowledge and conclusions reached by Dr Nguyen, at the relevant times, are directly relevant to the proof of either or both limbs of the negligence claim outlined above.

Interrogatories 3 and 8 28 Interrogatories 3 and 8 are objected to on the same basis. Those bases are intertwined and raise that the question goes to the defendant's state of mind, does not relate to any matter in issue and is vexatious or oppressive. 29 The interrogatories are:

"3. As at 17 February 2000, what abnormalities did you think would be demonstrated on a full blood count, full blood examination or iron studies blood test in a patient with iron deficiency anaemia or low iron levels in her body?"

"8 As at 17 February 2000, what abnormalities did you think would be demonstrated on a full blood count or full blood examination of a patient with Vitamin B12 deficiency?" 30 The use of the words "did you think" as distinct from, say, "were you aware", has probably led to some confusion but where used in interrogatories 3 and 8 it seems that what is sought is the state of knowledge and/or awareness of Dr Nguyen relevant directly to the exercise of his professional expertise. 31 In those circumstances the questions go not to the motivation of Dr Nguyen but to the existence and/or non-application of the represented expertise. 32 A further objection is raised in that, it is said, interrogatories 3 and 8 rely upon an assumption that is neither admitted nor subject to a preceding interrogatory. That assumption is that abnormalities would, necessarily, be demonstrated. This objection is essentially that the words "if any" were not part of the question. In my view, even without the words "if any", if Dr Nguyen considered that no abnormalities would be demonstrated, the interrogatory could be answered "none" and be a direct and proper answer to the question. 33 The argument that a further assumption is made, being that Ms Chong was a person with the requisite symptom or test result to which reference is made in the question, cannot be successful. The answer to the question is relevant to the expertise of the defendant, Dr Nguyen, but its admissibility or use will depend on proof that Ms Chong was a person with that symptom or those symptoms or with that test result or those test results respectively. 34 Further, the use of the answers to the questions does not depend on the reason (which question and answer is interrogatory 2) that iron supplements were in fact prescribed, nor does it depend on what symptoms or test results Dr Nguyen considered; its use depends on independent evidence as to what reasonably should have been considered, prescribed and/or treated. 35 For the above reasons I consider interrogatories 3 and 8 necessary and I do not allow the objections to them. I make it clear, lest it not otherwise be, that I do not consider either interrogatory directed only to the abstract nor do I consider the use of the terms "abnormality" or "demonstrated" in interrogatory 3 to be vague or uncertain. These interrogatories are not vexatious or oppressive.

Interrogatory 11 36 Interrogatory 11 is in the following terms:

"11. As at February 2000, did you consider that a patient with a chronic renal disease might complain of symptoms of tiredness, lethargy and lassitude?" 37 Much of the analysis of interrogatories 3 and 8 is relevant to the issues raised here. 38 The actual consideration of Dr Nguyen is, in this case, a relevant factual issue and like the answers to interrogatories 3 and 8 would disclose information solely within the knowledge of the Defendant. 39 The other, more particular, objection to this question has superficial attraction. It is said by the defendant that the only interrogatory that could be legitimately asked is whether these particular symptoms "were recognised by the defendant to be potential symptoms of chronic renal disease". 40 It may be that such wording would be preferable but the interrogatory as framed, while it arguably may refer to complaints that are unrelated to the condition, must be properly understood as enquiring whether Dr Nguyen considered, at the relevant date, that a patient with chronic renal disease might complain of the stated symptoms, qua the patient's status as a person with the disease. 41 Again, I consider the interrogatory necessary and the objection fails.

Interrogatory 15(d) 42 Interrogatory 15(d) is, as follows:

"15. If you answered yes to the previous interrogatories [which is the case], then in respect of each blood test: … (d) state whether you considered at the time that the abnormalities could have been the result of a renal disease or renal condition, stating which, renal disease you considered as a possible cause of the abnormalities." 43 I have already dealt with the relevance of Dr Nguyen's actual consideration to the issues of fact in the trial and I do not allow that part of the objection to this interrogatory that depends upon the irrelevance of actual consideration. However, the defendant also raises that the requirement, to list which renal disease or condition was considered the cause of the abnormalities, is oppressive. 44 The argument in relation to oppression whilst superficially attractive, fails for two reasons. Firstly, Dr Nguyen is not asked to list every renal cause of the abnormalities, only those that were, in fact, on the relevant date, considered. There may be none. Secondly, the ground depends upon proof that the list is so extensive as to be oppressive. No evidence was adduced by the defendant on this issue or at all. In those circumstances, the objection to this interrogatory must also fail and the interrogatory, being necessary, will be ordered.

Interrogatory 17(c) 45 The last interrogatory to which objection is taken is: "17. … (c) specify whether you referred the plaintiff to a specialist (other than a radiologist or pathologist) … and, if not, state why you did not refer the plaintiff to such a specialist." 46 Interrogatory 17(c) was answered in the following way: "I cannot say whether I made a referral because my clinical records for consultations [on the relevant dates] were lost in a computer malfunction … I can no longer say if I made any referral …" 47 The defendant has answered the interrogatory indicating by the words "I cannot say …" that he has no records and no independent recollection. He cannot be asked to give an answer in circumstances where he does not know and his records from which such knowledge could be derived are no longer in existence. 48 The failure to indicate whether there was a referral to a specialist, does not give rise to the alternative the answer to which is beyond the knowledge of the defendant. Were it within the knowledge of the defendant, so too would be the answer to the first part of the question. 49 Given the nature of the response already given to interrogatory 17(c) I do not consider that an order requiring a further or any answer is necessary.

Conclusion 50 For the above reasons I make the following order: The defendant shall respond to interrogatories 3, 8, 11 and 15(d) of the Plaintiff's Notice to Answer Interrogatories dated 30 September 2004.

29/06/2005 - typographical error - Paragraph(s) 3 01/08/2005 - Error in having this Judgment published on the internet. - Paragraph(s) All

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