Donaghy v Wentworth Area Health Service

CATCHWORDS : Interlocutory application - whether to grant adjournment - whether plaintiff can give evidence by way of affidavit - query whether open to the Court for the plaintiff to be interrogated LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Part 24, 33 Bonhote v Henderson [1895] 1 Ch 742; Bourke v Davis (1890) 44 Ch D 110; Estex Clothing Manufacturers Pty Ltd v Ellis and Goldstein Ltd (1967) 116 CLR 254; CASES CITED : Lindsay-Owen v Lake [2000] NSWSC 1046; Linfox Transport (Aust) Pty Ltd v Ellul [2003] NSWSC 396; Protective Commissioner v B (Unreported, NSWSC, Hodgson J, 23 June 1997); The Parisian (1888) LR 13 PD 16; PARTIES : Carolyn Annette Donaghy - Plaintiff Wentworth Area Health Service - Defendant FILE NUMBER(S) : SC 20012/01 COUNSEL : D Wheelahan, QC with A McSpedden - Plaintiff J Maconachie, QC with F Doak - Defendant SOLICITORS : Bell and Partners - Plaintiff TurksLegal - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 Shaw J: In this matter Mrs Carolyn Donaghy, the plaintiff, alleges that at December 1996 she was employed by the defendant as a nurse and was, at that time, also pregnant with her first child. She says that she slipped and fell on a wet floor and suffered injury, loss and damage as a result of the fall. 2 The medical condition of the plaintiff subsequent to the accident seems to have resulted in catastrophic debilitation including the premature birth of her child and a variety of other physiological and psychological injuries. 3 It is said that this damage was caused by the negligence of the defendant. 4 The defendant has conceded that there has been a breach of a duty of care owed to the plaintiff, although the defendant contends that there is no basis for damages to be awarded to the plaintiff and that, in any event, there was contributory negligence on the part of the plaintiff contributing to her injuries. 5 The accident in question apparently occurred on 29 December 1996. The plaintiff was born on 2 April 1970, is currently married with one daughter, Megan, and though she has qualifications in nursing may not be able to work again. It is asserted that she and her husband hoped for three children. 6 At the time of the accident the plaintiff was at the sixteenth week of her pregnancy when she fell, leading to a discharge of amniotic fluid. It is said by the plaintiff that as a result of her injuries there was, on medical advice, a need to induct the birth of the child at week 33 of the pregnancy by caesarean section and, in the following years, resulted in profound depressive illness, surgical intervention, and symptoms consistent with an intra-uterine infection. 7 Thus, according to the opening by Senior Counsel for the plaintiff (Mr Wheelahan, QC) there is both a combination of psychological and physiological difficulties encountered by the plaintiff as a result of the fall at work which, it is apparently accepted, resulted from a breach of the duty of care owed by the employer. 8 I am not making any prejudgment of these issues which will need to be determined on a trial of questions of fact and with the advantage of expert evidence. 9 Two interlocutory issues arise and call for judgment: (1) The defendant seeks a general adjournment because, it says, it is taken by surprise in relation to a number of aspects of the plaintiff's opening of her case and it says they have not been adequately particularised in the formal documents filed in the Court to date; (2) There is a question as to whether the plaintiff should be allowed to give her evidence in chief by way of affidavit, with, it is conceded, a right of the defendant to cross examine her. 10 I deal with these two issues in this judgment. 11 In support of the adjournment the defendant makes the point that some of the matters agitated in the opening by Senior Counsel for the plaintiff have not been the subject of formal particulars in the claim. The plaintiff refers to the information required by Part 33 r 8A of the Supreme Court Rules 1970 (NSW). It is said that those formal particulars do not assert the need for the plaintiff to have a swimming pool. It is also said that the evidence of Professor White concerning the loss of bone density as a result of Zoladex implants resulting in osteopenia and arthralgia, conditions resulting in a loss of bone density, has not been adequately pleaded as a claim for medical care.

12 However, by letter of 2 December 2002 from the solicitors for the plaintiff to the solicitors for the defendant, express references are made to an 'additional claim' and to medical reports served in the plaintiff's case. It is specifically put in that letter that the plaintiff suffers from 'osteopenia and arthralgia as a consequence of zoladex implants'. It is also put that the plaintiff suffers from 'incontinence' and reports of a physiotherapist are referred to in support of that proposition. The letter also indicates that: As part of the plaintiff's claim it is intended to claim the costs associated with the installation and maintenance of a hydro-therapy pool. 13 Costings were provided in relation to the provision of such a pool. 14 In these circumstances I take the view that the defendant has been sufficiently put on notice of these ingredients of the plaintiff's claim. In an ideal world it would have been desirable for the amended statement of injuries and disabilities filed on 5 June 2003 to have included with greater specificity these matters now relied upon. Nonetheless in the light of the correspondence to which I have referred it is difficult to see that the defendant has been taken by surprise in relation to these matters. Nonetheless if adjournments are required in relation to consideration of particular matters, then application can be made accordingly and no doubt the Court will give due consideration to those applications. 15 I accept the submission of Senior Counsel for the plaintiff that the case should 'go on' but that if there is some legitimate need for the defendant to consider some specified aspect of the plaintiff's case that matter could be dealt with 'separately and later' (Transcript at 42). 16 As to whether an adjournment should be granted I am also influenced by the opinion of Dr Andrew Robertson, a consultant forensic psychiatrist of 19 November 2002, tendered without objection which attests to the post traumatic stress disorder and associated major depression suffered by the plaintiff and to his view that: …any further delay in settlement of her legal matter is likely to have a detrimental effect on her mental status. 17 In these circumstances I propose to decline the application for a general adjournment of the proceedings and to continue the trial. 18 The next question is whether the plaintiff's evidence in chief should be allowed to be taken on affidavit. 19 What is sought by the plaintiff in her notice of motion filed on 5 June 2003 is that her evidence in chief be given by way of affidavit. It is conceded by counsel for the plaintiff that she must be subject to cross examination. What is relied upon by the defendant is the prima facie rule in Part 36 r 2 that the evidence of any witness on any issue at a trial shall be given orally before the Court. I have referred to the presumptive nature of this mode of evidence in Linfox Transport (Aust) Pty Limited v Ellul [2003] NSWSC 396 at [16]. However, this rule is expressly subject to subsequent provisions in the Rules which provide, inter alia, that 'the Court may, on terms, order that the evidence of particular facts may be given by affidavit'. 20 The defendant, in its able and comprehensive argument, points to the possible disadvantages of evidence being given by affidavit in a common law trial. However, on analysis the cases cited by counsel focus on prejudice being suffered by a party in the event of inability to cross examine a deponent as a result of death, senility or other unavailability. This does not, it seems to me, fundamentally challenge the proposition that evidence in chief, subject to cross examination, can with fairness to both parties, be given by affidavit. 21 In the case of The Parisian (1888) LR 13 PD 16 Butt J, sitting in the Probate, Divorce and Admiralty Division of the High Court of England, approved of the Registrar receiving an affidavit of the plaintiff but also said that it would be within the right of the Registrar if he refuses to give the statements in it any weight 'unless and until there has been a cross examination of the deponent here or abroad'. The importance of cross examination of the deponent to an affidavit was also emphasised by Kekewich J, sitting in the Chancery Division, in Bonhote v Henderson [1895] 1 Ch 742 at 747 (an appeal dismissed at [1895] 2 Ch 202; see also Kay J in Bourke v Davis (1890) 44 Ch D 110. In Estex Clothing Manufacturers Pty Limited v Ellis and Goldstein Limited (1967) 116 CLR 254 Windeyer J emphasised the importance of a party being able to challenge evidence in adversarial proceedings by saying (at 263): It would have been interesting to have heard this witness cross examined to observe how she explained her two quite contradictory affidavits, but I was told that she was dead. According to the practice of the Chancery Court an affidavit could be received although the deponent had dies after it was sworn; but the Court did not attach so much weight to it as it would have done if it had been an opportunity for cross examination… 22 These authorities, as I have indicated, fundamentally concern the availability of a deponent for cross examination and the principles were crystallised by Justice P.W. Young in a note in the Australian Law Journal entitled 'Deponent Unavailable for Cross Examination' ((1992) 62 ALJ 300, 301). 23 The position seems to me to be quite distinguishable in relation to a case where through, what are apparently accepted disabilities, a plaintiff would have difficulty giving fluent oral evidence in chief but where she is available for cross examination. Reference has been made to s 28 of the Evidence Act 1995 and I note that the author of the commentary on the Uniform Evidence Law (5th Ed, Lawbook Co), Mr Odgers, SC, comments (at 65): Although it is not expressly stated, it appears clear that the Act does not prevent a Court from directing that evidence is to be given by affidavit. 24 Reference has been made to unreported judgments of Hodgson J: Protective Commission v B (Unreported, NSWSC, Equity Division, 23 June 1997) and as Chief Judge in Equity in Lindsay-Owen v Lake [2000] NSWSC 1046 at [2]. These two judgments of Hodgson J seem to bear out the proposition that, in appropriate cases, the Court can allow evidence to be given by affidavit. There seems to be no real dispute that the Court has power to do so, rather it is a question of the exercise of a discretion. In the Equity Division of this Court and in the Federal Court of Australia this is regular procedure. 25 The concept of evidence in chief, in civil matters, being taken by a written statement has gained ascendency only in recent times. But in the Court of Chancery it has had a long history. By the beginning of the fifteenth century, witnesses were being called to give evidence on oath an 'consequently in the later days of Chancery procedure evidence came to be made upon affidavit, a practice still common in the Chancery Division of the High Court' (A.K.R. Kiralfy, Potter's Historical Introduction to English Law (4th Ed) Sweet and Maxwell (1962) at 581). Incongruously to the mind of a contemporary lawyer, historically parties were not permitted to give evidence until Lord Denman's Act of 1843 (W.J.V. Windeyer, Lectures on Legal History Law Book Co (1938) at 147, 186, 242). This antipathy to evidence seems to have arisen from an obsessive concentration in the common law courts with records and documents (T. Plunkett, A Concise History of the Common Law (5th Ed) Butterworths (1956) at 178). 26 Nowadays evidence of the parties is readily received, as is the evidence of strangers to the litigation. 27 In my view, the courts should exercise a flexible discretion to receive that evidence in either an oral or a written form, depending upon the circumstances of the case. 28 When I come to exercise my discretion, I must be influenced by the physical and psychological debilitation of the plaintiff in this case. She has had relentless medical treatment of both a psychological and physical nature. She has had operations, much treatment by psychologists and psychiatrists, and I saw her in the witness box exhibiting what, prima facie, seem to be real difficulties in dealing with questions and answers under oath. I acknowledge that, in the preparation of her affidavit, the plaintiff has been assisted by her husband and her legal advisers. In my view, such factors go to the weight to be accorded to the evidence rather than constituting a fundamental hurdle to the proposed mode of tendering the material. I am also influenced by the ready acceptance of her counsel that she can be cross examined. Accordingly, it seems to me that counsel for the defendant will be able to test her evidence and will not be, in substance, disadvantaged by the fact that her affidavit is read to the Court, as would be a common phenomenon in the Equity Division of this Court, as distinct from the need to obtain from the plaintiff viva voce evidence. 29 However, the defendant asserts that, for all the reasons put forward by the plaintiff to avoid giving oral evidence in chief, they are similarly unable to elicit cogent and comprehensive evidence in cross examination. 30 The defendant submits that since it will be unable to properly test the evidence of the plaintiff, given by way of affidavit, that the evidence should be afforded little weight, indeed, so little weight as to rob it of relevance and render it inadmissible pursuant to s 55 of the Evidence Act. 31 I am not persuaded that matters of weight can go to admissibility in this respect. However, there may be other alternatives open to the defendant. 32 If necessary, the plaintiff's injuries would compel the Court to respond appropriately to the situation. If evidence can be obtained, it should be, rather than excluded. Surely the Court can evolve to develop a proper solution to this issue. 33 I note that Part 24 of the Supreme Court Rules provides that a party may be interrogated. Interrogatories would be a simple, efficient and effective method of eliciting evidence from the plaintiff. The time and expense that may be taken up in oral cross examination of this plaintiff would be significant. I am not sure that this defect in the manner in which this Court receives evidence can be cured by allowing the plaintiff to speak through her husband, nor by discarding some of the unfamiliar and perhaps intimidating trappings of the curial process. 34 However, Part 24 r 1(3) of the Rules provides that the rule does not apply to a common law claim for damages arising out of a personal injury. It has never been determined whether this sub-rule would prevent an order for interrogatories in such an action where the Court was compelled to make such an order in the inherent jurisdiction of the Court to preserve the integrity of its processes or otherwise pursuant to Part 24 r 5. I leave that question open. 35 In all of these circumstances, and subject to questions of admissibility, I propose to order pursuant to Part 36 r 2(2) of the Rules that evidence of the facts attested to by the plaintiff in her evidence in chief may be given by affidavit. 36 I reserve the question of costs. The trial will proceed in accordance with these rulings.

Last Modified: 06/20/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.