El-Mouelhy v Reid

Supreme Court of NSW|2017-05-18|Before: Adamson J

Introduction

By notice of motion filed on 3 February 2017 Nadia El-Mouelhy, the plaintiff, sought an order for verified interrogatories against Dr Richard Reid, the defendant.
The proceedings were commenced in the District Court on 6 September 2013. An amended statement of claim was filed in the District Court on 2 October 2015, to which a defence was filed on 4 December 2015. The proceedings were subsequently transferred to this Court.
For present purposes, it is sufficient to summarise the plaintiff's claim in broad terms. The plaintiff claims damages for negligence against the defendant arising from two medical procedures which he performed on her vagina on 14 September 2010 and 19 July 2011 respectively. The plaintiff's case is that the defendant was negligent in failing to obtain relevant consent for the procedures; performing the procedures when conservative management was warranted; and in the way in which he performed the procedures.

The relevant rules

Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 22.1 relevantly provides: "22.1 Interrogatories (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. . . ."

Consideration

Before turning to particular interrogatories I propose to address their general utility in the light of the submission made by Mr Romaniuk SC, who appeared with Mr Doyon on behalf of the plaintiff. He submitted that it was more efficient for the plaintiff to apply for interrogatories, rather than adopt other forensic methods, so that all the sworn admissions could be contained within a single document which could be tendered by the plaintiff in her case, shown to experts in advance of the hearing, or used in support of an application for summary judgment. He submitted that interrogatories tended to overcome the disadvantage to which a plaintiff was subjected by reason of the circumstance that a defendant's decision whether to give evidence can be deferred until the close of the plaintiff's case.
The UCPR contain a number of forensic tools, which are to be selected by practitioners by reference to their suitability for the task required of them. A similar assessment of the suitability of the procedure is performed by the court where leave is required by the UCPR. Interrogatories fulfil important forensic purposes. They enable, as in the present case, a plaintiff who was anaesthetised at the time of surgery, to obtain sworn admissions from the person who performed the surgery (the defendant) as to what occurred and as to why he did particular things. Interrogatories are not, however, a substitute for other forensic procedures. The wording of UCPR 22.1(4) makes it clear that interrogatories are not to be ordered where other means could more readily be used, since they would not, in that event, be "necessary". While it would overstate matters to describe interrogatories as a procedure of last resort, the requirement of necessity is an important qualifier to the court's power to order them. Although it may be more efficient for a plaintiff to proceed by obtaining admissions through interrogatories, the appropriateness of interrogatories is not to be determined solely, or even largely, by the convenience of one party or another.
The costs associated with interrogatories are also an important factor. It may be quick and cheap for one party to ask an interrogatory but may not be just to require the other party to answer an interrogatory which is very expensive and time-consuming to answer. Interrogatories are not to be used by one party as a device to transfer the cost of litigation to the other party.

The ambit of the dispute

The plaintiff's draft notice sought a total of 84 interrogatories, some of which had a number of parts. In the course of argument, Mr Romaniuk SC, who appeared with Mr Doyon on behalf of the plaintiff, indicated that he did not press interrogatories 52-66, 68-70, 74-75 and 78-84. The defendant, for whom Mr Hackett appeared, had indicated his agreement to answer interrogatories 24, 29-31 and 39 by letter dated 8 March 2017. The balance of the interrogatories remained in dispute at the conclusion of the hearing.
The parties made detailed submissions, both in writing and orally, in favour of and against particular interrogatories. I do not propose to refer to these submissions in any detail since my views are sufficiently apparent from these reasons. As several of the interrogatories fell into categories, I propose, where possible, to give reasons by reference to the categories.

Discussions between the plaintiff and the defendant about the procedures: interrogatories 1-7, 10-13, 16-23, 25-28 and 32-37

The plaintiff's draft interrogatories seek answers from the defendant about what occurred during the examinations or consultations on 6 and 10 September 2010, and in the period up to the first procedure on 14 September 2010, at which the plaintiff and defendant were both present and conscious (interrogatories 1-23; 25-26). Further interrogatories ask questions about what occurred in the period prior to the second procedure on 19 July 2011 (interrogatories 27-28, 32-37). Mr Romaniuk confirmed that the plaintiff had served her lay and expert evidence in chief and that her lay evidence covered the plaintiff's version of what occurred in these examinations or consultations. He submitted that the plaintiff was entitled to use interrogatories to obtain a sworn version on oath from the defendant. He adverted to the possibility that, even if the defendant served a witness statement (and no directions have yet been made to require the defendant to serve his evidence) the defendant could still decide, after the plaintiff's case was closed, not to give evidence. He contended that it was important that the plaintiff be permitted to elicit sworn admissions from the defendant which she could tender in her case.
One can readily understand why the plaintiff has sought the interrogatories that fall into this category. The answers would bind the defendant to a version, which could then be put to experts whose opinions could be sought on whether the defendant, on his sworn version, was negligent.
The plaintiff has given her version in a witness statement that has been served and has obtained the expert opinion of Dr Koya, obstetrician and gynaecologist, on her version. The plaintiff will, presumably, adopt the witness statement in her oral evidence in chief. The version on which the defendant relies, although not yet the subject of a witness statement, is apparent from the "Statement of Issues in Dispute" filed on behalf of the defendant on 9 December 2016. In this document the defendant's solicitors have set out, in respect of each issue in dispute, a list of "Facts the Defendant intends to establish". Accordingly, the plaintiff is on notice of the substantial factual issues.
If the defendant gives evidence at the trial, the trial judge will determine any relevant factual disputes between the plaintiff's and defendant's versions. If the defendant does not give evidence, the plaintiff will have the benefit of the inference that nothing the defendant could have said would have assisted his case: Jones v Dunkel (1959) 101 CLR 298. In all the circumstances, I am not satisfied that the interrogatories in this category are necessary.

Production of documents: interrogatories 8-9; 14-15

Interrogatories in this category seek the production of documents. For example, interrogatory 8 asks: "At consultation on 6 September 2010, what "office brochure", if any, did the Defendant provide to the Plaintiff? Please provide a copy of any brochures."
Notwithstanding that the defendant has already, by way of informal discovery, provided the document, Mr Romaniuk submitted that the plaintiff would prefer an admission in the form of an answer to an interrogatory to prove that the defendant gave her a particular brochure. The difficulty with this proposition is that it fails to have regard to the other procedures available to parties to proceedings in this Court, many of which do not require the leave of the Court. It would be open to the plaintiff to serve a notice to produce to the defendant requiring production of any brochure or other document provided to the plaintiff at the consultation on 6 September 2010. The plaintiff could tender, in her case, the notice to produce and the relevant document to prove that fact (in addition to her own testimony). Moreover, since there does not appear to be any dispute about what was provided it could be the subject of an agreed fact under s 191 of the Evidence Act 1995 (NSW). The availability of other procedures, particularly when they are apparently more suitable, makes an order for interrogatories inappropriate.

The knowledge and opinion of the defendant: interrogatories 38, 40-41

Interrogatories in this category comprise questions asked of the defendant concerning his opinions and knowledge at relevant times. For example, interrogatory 38 (as amended) asks: "Does the Defendant agree that, at the time of the procedures, the utilisation of Obtryx mesh was ordinarily utilised for management of urinary incontinence?"
Mr Hackett objected to the interrogatory on the basis of form, as well as relevance and necessity. I consider his objections to be well-founded. The word "ordinarily" imports a value judgment into the question which requires a conclusion to be drawn by the person required to answer it. Moreover, if it be part of the plaintiff's case that, at the time of the procedures, Obtryx mesh was usually used for management of urinary incontinence, this fact can be proved by an expert called on behalf of the plaintiff. The defendant's belief or knowledge as to the fact is not determinative since the relevant standard is an objective one which is to be determined by reference to the state of knowledge of a reasonably competent practitioner in the defendant's position.
Interrogatories 40-41 are to be distinguished from 38 since they seek to ascertain the defendant's knowledge of particular risks and complications said to arise from the use of polypropylene mesh and vaginal mesh for pelvic organ prolapses. The difficulties with these interrogatories are, in my view, principally formal. An interrogatory asking whether the defendant was aware of a particular journal article at the time of performing one or other of the procedures might be appropriate and necessary. However to ask, as interrogatory 40 does, whether the defendant was "aware of multiple medical studies outlining the complications relating to the use of polypropylene mesh" is too vague and ambiguous to be of any particular forensic use. Interrogatory 41 suffers from the same defects.

The defendant's training, surgical experience and conduct: interrogatories 42-47, 50-51

Interrogatories 42-47 ask the following: "42 What training, study and experience had the Defendant undergone prior to the surgeries on 14 September 2010 and 19 July 2011 in relation to the placement of polypropylene meshes? 43 Did the Defendant receive any training from the companies Boston Scientific and Cook Medical Devices? 44 If the answer to question 43 above is yes, please specify the following:- (a) The name of the training course? (b) The administrator of the training course? (c) The dates of attendance of the training course? (d) Provide records, registers and agendas for the training course? 45 Prior to the surgeries on 14 September 2010 and 19 July 2011, on how many occasions had the Defendant placed polypropylene meshes into his other patients? 46 Prior to the surgeries on 14 September 2010 and 19 July 2011, on how many occasions had the Defendant utilised the applications of Surgisis Xenograft products? 47 Prior to the surgeries on 14 September 2010 and 19 July 2011, on how many occasions had the Defendant utilised Obtryx tapes?"
I regard interrogatories 42-44 as appropriate in that they seem to be necessary. Although 43 may be a subset of 42, it covers training beyond the placement of polypropylene meshes and therefore will be allowed. As for 45-47, I consider them to be too broad in their current form since they cover the whole of the defendant's career to 19 July 2011. Although Mr Hackett did not rely on any evidence of oppression, the interrogatories are, by their nature, oppressive. It is preferable for the plaintiff's solicitors to seek answers to questions 45-47 in correspondence first (which I understand has not been done) with a view to narrowing the questions, or obtaining admissions.
Interrogatories 50-51 ask the following: "50 On 14 September 2010, the date of the first surgery, did the Defendant undertake any other surgical procedures on other patients on that day? 51 If the answer to question 50 above is yes, please specify:- (a) The number of surgeries? (b) The nature of the surgeries performed? (c) The hospital or place where the surgeries were performed?"
In oral submissions, Mr Romaniuk indicated that the plaintiff wanted to make a case, for which he confirmed there was some basis (findings in disciplinary proceedings), that the defendant overused particular products and used them for applications for which they were unsuited and that this was what had happened in the present case. I do not consider that interrogatories 50-52 are apt to establish that matter. I am not persuaded that they are necessary. It may be that material associated with disciplinary proceedings, could lead to a narrower formulation of interrogatories, which could be found to be necessary. However, in my view, interrogatories 50 and 51 are neither appropriate nor necessary.

The defendant's registration and disciplinary findings: interrogatories 48-49

Interrogatories 48-49 ask the following: "48 Prior to 6 September 2010 had the Defendant been disqualified and/or suspended from or had conditions placed on medical practice? 49 If the answer to question 48 above is yes, then specify the following:- (a) The dates of the disqualifications and/or suspensions? (b) The written reasons for the disqualifications and/or suspensions? (c) The name of the authority and/or regulator that issued the disqualifications and/or suspensions? (d) Conditions placed on his medical practice?"
Mr Romaniuk effectively conceded in oral submissions that these interrogatories were premature. In any event, I regard them as too broad and potentially irrelevant. Moreover, they have not been shown to be necessary since the plaintiff's solicitors have not yet made the enquiry of the defendant's solicitors about these matters. If any disqualification or suspension took place in Australia, a subpoena could be issued to the relevant regulatory authorities. If it took place outside Australia, then there may be a need for interrogatories if the regulatory bodies in the other jurisdiction are not amenable to subpoena.

Conclusion

Interrogatories 42-44 will be allowed as I am satisfied that they are necessary.

Costs

Each party sought costs if successful. Otherwise it was submitted that the costs ought be costs in the cause.
The plaintiff served the draft interrogatories on 19 December 2016. By letter dated 20 January 2017 the defendant objected to answering the interrogatories. Subsequently the plaintiff served the affidavit of Jessica Prats affirmed 3 February 2017. The matter came before the Registrar for directions on 10 February 2017 and the motion was allocated a hearing date on 18 May 2017. Subsequently the plaintiff filed a further affidavit of Jessica Prats on 1 March 2017. In the second affidavit, Ms Prats set out the details of the surgery performed on the plaintiff and the fact that the plaintiff was anaesthetised during the surgery and was, accordingly, unaware of the actual procedures performed by the defendant. On 8 March 2017, having considered the latter affidavit, the defendant consented to answering interrogatories 24, 29, 30, 31 and 39 and agreed to provide the documents referred to in interrogatories 8, 9, 74, 75, 78, 70 and 84. Submissions were filed in April 2014 by the parties.
As a result of the motion, the plaintiff will obtain an order that the defendant answer three further interrogatories (42-44). It is not necessary to order the defendant to answer the interrogatories which he has already agreed to answer. Since 8 March 2017, considerable expense has been incurred, both in the preparation of written submissions and in the half-day hearing of the matter on 18 May 2017.
The plaintiff has had a measure of success and obtained the defendant's agreement to certain interrogatories after the motion was filed; and obtained three further interrogatories as a result of a half-day hearing. The defendant has also had a measure of success in resisting a considerable number of interrogatories which were bad in form, inappropriate or unnecessary. In all the circumstances I consider the appropriate order to be that the costs of the motion be costs in the cause.

Orders

I make the following orders: 1. Order the defendant, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 22.1, to answer interrogatories numbered 42, 43, and 44 in the draft annexed to the notice of motion filed on 3 February 2017 and to verify such answers in an affidavit. 2. Order that the costs of the motion be costs in the cause.

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. Decision last updated: 19 May 2017

At a glance

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Judgment (13 paragraphs)

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