McCallum v Reynolds

ex tempore judgment (revised)

1. The first and second defendants are seeking an order under r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) for the administration of interrogatories to the plaintiff. The first and second defendants have yet to file their defence.
2. The plaintiff's case is that she suffered catastrophic spinal injury on 16 June 2012 when she fell from a seated position on the top rail of a wooden balcony at residential premises in Kingscliff, in northern New South Wales. She and her partner were tenants of the premises and the first and second defendants were the landlords. The third and fourth defendants, who are taking no part in this application, are the landlords' agents.
3. The plaintiff's case is that the balcony rail was unstable and its instability caused it to move suddenly and without warning. She fell to the ground some four metres below, landing on her feet but I infer that compressive force of her contact with the ground caused a bursting type fracture of the vertebral body at T12 leading to a spinal cord injury. The fragment of that bony part of the spine damaged the spinal cord at about T9, according to the evidence I have read and which has been led before me in support of this application.
4. The plaintiff's case is framed largely in negligence. She also relies upon the terms of the residential lease and upon statutory causes of actions said to arise out of the provisions of the Residential Tenancies Act 2010 (NSW). It is fair to say that largely her claim is brought in negligence, whether it be regarded as a breach of contract or breach of statutory duty in the alternative.
5. By a motion filed on 5 February 2016, the first and second defendants seek to administer ten interrogatories, although interrogatory two has four parts. The defendants say that the interrogatories go to an issue of the plaintiff's intoxication. That issue is said to arise under the provisions of Pt 6 of the Civil Liability Act 2002 (NSW), in particular, reliance is placed upon s 50. If it is established that the person whose injury is the subject of the proceedings was intoxicated at the time of the injury to the extent that the person's capacity to exercise reasonable care and skill was impaired, the Court is not to award damages in respect of liability to the plaintiff unless satisfied that the injury is likely to have occurred even if the person had not been intoxicated. Even if the proviso, in ss (2) of s 50 is satisfied, there is a statutory presumption of not less than 25% contributory negligence.
6. As I have said the defendants have not yet filed their defence. However, Mr Purdy of counsel who appears for them on this application, has pointed out that the material available at this time, by way of hospital and other clinical records provides a basis for the defendant believing that before the receipt by the plaintiff of her injuries she had been drinking alcohol. Learned counsel submits that it is not necessary for a defence to have been filed raising that issue prior to an application being made for interrogatories. In this regard he relies upon the decision of Hunt J, as he then was, in Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 at p 297.
7. From the affidavit of the first and second defendants' solicitor, Mr Peter Ford, sworn on 4 February 2006, it is apparent that the clinical material does raise a suggestion that the plaintiff had drunk some alcohol in the hours before the injury. I interpolate that she has filed an evidentiary statement in accordance with the requirements of the Practice Note which is silent on that question but which states that she had retired to bed at about 8.30pm and was unable to sleep. After about thirty minutes, she got up, and went out onto the balcony as it was a nice evening. She then recounts the facts of her injury in accordance with the summary I have already given.
8. The material relied upon includes the following matters and I do not purport to be exhaustive. A report prepared by ambulance officers who attended her home to convey her to hospital; records what may be a history received from her, she was then conscious and that she had been drinking alcohol. Again, I am not purporting to quote precisely.
9. A clinical note at a hospital records that at 11.08pm, the plaintiff had been brought in by a New South Wales ambulance and there is the abbreviation ETOH, which one understands is a reference to alcohol. There are more precise records, for instance, at p 86 of the affidavit of Mr Ford: there is an admission record, which appears to have been completed by a person named Katherine English of the Princess Alexandra Hospital which records a history: "drinking (approximately) six drinks sitting on a balcony approximately four metres high."
10. A similar record is recorded in progress notes of 17 June 2012 of the same hospital, which, looking at the document at p 88 of Mr Ford's affidavit, may have been made by the anaesthetic Registrar.
11. Mr Purdy submits that this material, although it lays a foundation for a belief that intoxication is an issue in the case, at this stage is insufficient to justify the defendants filing a defence. He submits that given the particular responsibilities of lawyers in personal injury cases, it is therefore necessary for the defendant to have an order for interrogatories to enable it to obtain the opinion of an expert toxicologist or pharmacologist about whether on an accurate account of the plaintiff's drinking, intoxication is indeed an issue.
12. It is also submitted that this consideration and others to which I will return, constitutes "special reasons" for an order being made in the context of a personal injuries claim. The interrogatories which I have referred to, attached to the notice of motion, will be attached to a revised version of this ex tempore judgment when it is published on Caselaw NSW.
13. The proposed interrogatories go not only to the issue of the ingestion of alcohol but also extend to the question of whether the plaintiff had taken any "medication". I have not been taken to any material which lays a foundation for a belief that she may have, but it seems that the proposed interrogatories in that regard have been drawn bearing in mind the definition of intoxication in s 48 of the Civil Liability Act which refers to the influence of alcohol or a drug, in the latter case whether or not taken for medicinal purposes. The plaintiff, I should add, is a practising solicitor in the State of Queensland and the drafter of interrogatories perhaps has assumed that only medicine is relevant.
14. The plaintiff opposes the application. She says that the material relied upon by the defendants fails to demonstrate that the interrogatories sought at this time are necessary or that there are special reasons justifying an order that they be administered. In that regard, Mr Dickson of counsel has argued that in the absence of a defence I cannot be satisfied that there is a real issue about intoxication. With respect, I think that that argument is answered by Mr Purdy's reference to Kaiser.
15. Mr Dickson has also pointed out in a careful written argument that it is not self-evident, or perhaps even probable, that the records referring to the plaintiff having drunk some alcohol before her accident can be attributed to her. I will not go through all of the careful argument. There is much force in the argument given a number of factors, including the severity of her personal injury and the careful chronology that Mr Dickson has put together which demonstrates, for example, that Ms English's note may have been made about half an hour after the plaintiff was apparently taken into surgery for complex spinal surgery.
16. However that may be and, doubtless, that will be an issue for any trial of the matter, it seems to me that the clinical records attached to Mr Ford's affidavit are the type of document from which it can be inferred that the accounts, or at least some of them, are of a type commonly to be sourced to the plaintiff herself. There is no suggestion in the material that the plaintiff was in fact unconscious when the ambulance officers arrived or at any other time, although certainly she had received heavy narcotic medication for her very serious injuries. Normally, one can assume until the contrary is shown that matters of history recorded by ambulance officers from a conscious person, by triage nurses, or medical practitioners at a hospital come from the plaintiff. I do not mean to suggest that that is necessarily so and I do not, by those comments, seek to prejudge an issue that will arise at a trial. Put simply, those considerations to my mind demonstrate that there is sufficient ground for an appreciation on the part of the legal advisers of the first and second defendants that the intoxication may be an issue at the trial.
17. The modern rule in relation to interrogatories in personal injuries cases, counsel agree, requires the satisfaction of two preconditions to an order for interrogatories.
18. Rule 22.1 provides that a Court may order at any stage in the proceedings a party to answer specified interrogatories. In personal injuries cases, an order is not to be made unless the Court is satisfied that special reasons exist that justify the making of the order and in all cases, an order is not to be made unless the Court is satisfied that it is necessary at the time it is made. There was no real issue between the parties about the meaning of either "special reasons" or "necessary" in the rule. It seems to be well established by decisions of judges of the Common Law division, that the phrase "special reasons" is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court (NSW), Hall J, 7 July 2006, unrep) at 24-25; El Hayek v Vasic [2010] NSWSC 634 by Garling J. In the latter case, Garling J gave a number of examples that may take a case "out of the ordinary". Two are relied upon by the defendants. First, an inability to obtain the requisite factual material without the exercise of the discretion; and secondly, where the complexity of the subject matter is such that without the exercise of the discretion real prejudice will result to the applicant.
19. In that regard, as it was elaborated in oral argument, the defendant's forensic purpose is not only to enable it to conscientiously plead the issue but also to properly qualify an expert to give an opinion about the question of intoxication for the purpose of Pt 6 of the Act.
20. As I understood the development of the argument, it seemed to me that learned counsel was submitting that the purpose of administering interrogatories at this stage was at least in part exploratory. Mr Purdy reminded me that it has long been established in Australian jurisprudence that the relevant question for determining whether an interrogatory should be allowed is whether the answer to it could be material; not whether it would necessarily be material: Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; 13 CLR 101. But as I understood from both the evidence of Mr Ford and the argument of counsel, the real purpose in seeking an order now is to enable the first and second defendants to qualify, as I have said, an expert toxicologist for the purpose of evidence at the trial.
21. I have some difficulty of whether the specific purpose of qualifying an expert for the purpose of liability makes interrogatories necessary, acknowledging that necessary does not mean essential but reasonable for the purpose of a fair trial in a civil case.
22. As it was put by Rothman J in Chong v Nguyen [2005] NSWSC 588, the applicant must show that the interrogatories are reasonably required, or legally ancillary, to the achievement of a fair trial in the case. I would have thought that the material contained in the clinical records attached to Mr Ford's affidavit of itself gave rise to a legitimate question in the mind of the defendant's solicitor about whether intoxication was an issue. I notice that the third and fourth defendants have raised intoxication in the defence that they have already filed. It seems to me that professional responsibilities of a practising lawyer do not require certitude in such matters, rather, all that is required is that the lawyer conscientiously has a belief on the basis of material available to him or her, and upon a view of the law reasonably arguable, that there will be evidence available to be led at the trial which will fairly raise for determination the issue in question.
23. To explore with the plaintiff whether she had been drinking, what she had been drinking, over what period of time and how much, prior to filing any defence and if positive responses from the defendants' point of view are obtained, qualifying a suitable expert, are not of themselves matters which qualify as either necessary or constitute special reasons for the purpose of this application. The material already available to the defendant lays a reasonable foundation for obtaining the opinion of a toxicologist, or a pharmacologist, if that is what the defendants wishes to do. Naturally, there will be qualifications that an expert will need to express as to his or her opinion given that the evidence may be less precise than scientists prefer it to be. However, I am not of the view that obtaining precise responses, if that is what happens, for the purpose of submitting them to a toxicologist satisfies the statutory test of necessity in this case. Nor am I satisfied that it demonstrates that special reasons exist for the making of an order in this personal injuries case. Now doubtless, an experienced toxicologist will be able to say, for instance, that the consumption of six full strength drinks over different, specified periods of time, could be expected to effect upon her gross motor skills, her balance and other aspects of her metabolic functioning in specified ways. Nothing about those questions makes it necessary that interrogatories be administered at this time in advance of a defence nor does it constitute, as I have said, special reasons.
24. Uncertainty in the facts likely to be proved at a trial is part and parcel of the process of civil litigation in this State and elsewhere. It is the common experience of the courts that changes in the detail of the evidence can readily be accommodated during the oral evidence of experts called on either side of the record to deal with the issues fairly raised on the pleadings. And indeed the requirements in the Common Law Division for conferences of experts, the production of joint reports, and taking of expert evidence concurrently, are sufficiently flexible to accommodate changes, subtle or otherwise, in the understanding of the facts that naturally arise during the dynamic process of the conduct of a trial. It would be a most undesirable outcome in a case like this or cases like this if before defences were filed and before cases proceeded down the case management track, defendants were permitted to interrogate plaintiffs as to facts unknown to the former as a precursor to obtaining expert evidence and before filing a defence, on the one hand, and plaintiffs interrogate the defendants as to facts unknown to them before qualifying experts on the other. Such a practice would be a very dismal development in the conduct of civil litigation in this Court, especially having regard to the overriding purpose contained in s 56 to s 60 of the Civil Procedure Act 2005.
25. I should, before leaving the case, make reference to another decision which Mr Purdy relied upon and that is the decision of Chambers J, in Carr v Denny [1977] Tas SR (NC) N14. In that case, both the Master and Chambers J on appeal allowed a plaintiff to interrogate a defendant driver in a motor vehicle case about whether he had been driving under the influence of intoxicating liquor when the accident happened. I accept the force of Mr Dickson's submissions that in the absence of precise knowledge as to the content of the Tasmanian rule in the 1970s and the practice then in relation to the conduct of personal injuries litigation, it is difficult to see Carr as other than a decision that turns upon its own facts.
26. I am aware that although the rules in New South Wales, at least since 1970, have been restrictive of the power of the Court to grant interrogatories in personal injuries cases, the same cannot be said of the rules of other Australian jurisdictions. For instance, in the Australian Capital Territory interrogatories were, and probably still are, administered routinely between plaintiffs and defendants in personal injuries cases.
27. Moreover, I am not satisfied that the form of interrogatories proposed in Annexure A would themselves be appropriate if I had been otherwise persuaded as to necessity and special reasons. For instance, as I have said, there is simply no reason to suppose any involvement of any medication. Moreover, when one considers them as a whole and especially the details that is sought about the types of beverages, volumes of beverage, and alcoholic content of beverages, one can see that the real purpose of those interrogatories is to qualify the expert. Now there may be cases where the qualification of an expert is a legitimate purpose for the exercise of the power to order interrogatories but for the reasons I have given, I am not satisfied that this is one of them.
28. For those reasons, my orders records are: 1. I dismiss the notice of motion filed on 5 February 2016. COUNSEL ADDRESSED ON COSTS SEE SEPARATE TRANSCRIPT Mr Dickson applies for an order that the costs of the application be payable forthwith. He argues by reference to the inconvenience and the delay that has been occasioned by the bringing forth of this application. I am not satisfied that those considerations are such that I should order otherwise than in accordance with the general rule that costs of interlocutory proceedings abide the conclusion of the case. This is still comparatively early days in what will no doubt be a case of some complexity and in my judgment, there is no reason to depart from the general situation provided for by the rules. 1. The first and second defendants are to pay the plaintiffs costs of the application in accordance with Rule 42.7.