McCallum v Reynolds

Supreme Court of NSW|2017-02-10|Before: Campbell J

Judgment

HER HONOUR: This is the second application for interrogatories by the first and second defendants. The first motion seeking interrogatories was dismissed by Campbell J on 31 March 2016: McCallum v Reynolds [2016] NSWSC 366 (the first decision). The hearing is listed to commence on 13 November 2017 for 10 days.
By notice of motion filed 9 November 2016, the first and second defendants seek firstly an order pursuant to r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that leave be granted to file and serve on the plaintiff interrogatories; and secondly, an order that the plaintiff provide verified answers to the interrogatories within 14 days after service of the interrogatories.
The plaintiff is Katherine Christie McCallum. The first defendant is Phillip Reynolds. The second defendant is Anneliese Reinhold. The third defendant is DMB Realty Pty t/as Kingscliff Professionals Real Estate. The fourth defendant is Kingscliff Professionals Real Estate. The plaintiff relied upon the affidavit of her solicitor Candice Elizabeth Heisler dated 17 November 2016 and the affidavit of the first and second defendants' solicitor Peter John Ford dated 4 February 2016. The first and second defendants relied upon the affidavit of their solicitor Peter John Ford dated 9 November 2016.

The law in relation to interrogatories

UCPR 22.1 reads: "22.1 Interrogatories (cf SCR Part 24, rules 1-6; DCR Part 22A, rules 1-6) (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."

Special reasons

As the party seeking an order for interrogatories, the onus of establishing the existence of special reasons and necessity rests on the defendants: see O'Meara v Dr Arianayagam [2006] NSWSC 797 at [2].
In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498, Garling J (at [49] - [51]) said of the requirement for special reasons: "[49] The requirement for special reasons to be established is a restrictive one. It is intended to act as a limitation on the circumstances in which an order will be made. [50] Whilst it is clear that "special reasons", as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006 unreported) at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126] to [128] per Johnson J; Keating at [24]; Boscolo at [18] per French J (as his Honour then was). [51] Typically, but not exclusively, what will take the matter "out of the ordinary" is: (a) an inability to obtain the requisite factual material without the exercise of the discretion; (b) that the applicant is in a position of some disability or disadvantage; (c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant; (d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised."
At the original hearing, counsel for the first and second defendants relied on two matters set out in para [51] of El Hayek. The two matters were firstly, 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.
Senior counsel for the first and second defendants at this hearing submitted that this application for interrogatories satisfied all the matters set out in para [51] of El Hayek. Aside from the two matters raised before Campbell J, senior counsel argued that the first and second defendants are at some disability and some disadvantage as they cannot prove their case and that the answer to the interrogatories will achieve the just, quick and cheap resolution of the issue. Further, they drew my attention to the overriding purpose and submitted that with respect Campbell J did not really consider what might happen at trial if they had to do it a trial. (T11.9). With respect, I think his Honour did do so.

Necessity

UCPR 22.1(4) requires that a Court must be satisfied that an order to answer interrogatories is "necessary at the time it is made".
The necessity requirement is to be approached as meaning "reasonably necessary for the disposing fairly of the cause or matter" or "necessary in the interests of a fair trial": see Boyle v Downs [1979] 1 NSWLR 192 at 205 per Cross J.
In Chong v Nguyen [2005] NSWSC 588, Rothman J explained (at [16]) the necessity requirement as follows: "[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 (NSW) v Chapman (1987) 12 NSWLR 477 at 452)." [original emphasis]

The interrogatories

The first and second defendants seek that the plaintiff answer the following interrogatories ("the interrogatories"): "1. Did you consume any alcoholic beverage in the 12 hour period before the accident ("the period")? 2. If your answer to interrogatory 1 above is "yes", what type of alcoholic beverage did you consume in the period? 3. If your answer to interrogatory 1 above is "yes", how many alcoholic beverages did you consume in the period? If you consumed more than one type of alcoholic beverage during the period, how many of each type of alcoholic beverage did you consume? 4. If your answer to interrogatory 1 above is "yes", what was the volume of each alcoholic beverage that you consumed? 5. If your answer to interrogatory 1 above is "yes", what time did you commence drinking in the period? 6. If your answer to interrogatory 1 above is "yes", what time did you stop drinking in the period? 7. Did you consume any food during the period? 8. If your answer to interrogatory 7 above is "yes", when and what type of food did you consume?"
The first and second defendant's brought an original application that the plaintiff answer these interrogatories. However, the earlier interrogatories included questions about medication but these interrogatories are no longer pressed. The original application was heard by Campbell J who refused leave to the first and second defendants to administer these interrogatories McCallum v Reynolds [2016] NSWSC 366.
Following the accident the plaintiff was taken by ambulance to Tweed Heads hospital and then transferred to the Princess Alexandra hospital in Queensland. The Princess Alexandra hospital has produced the following documents on subpoena: resuscitation room record dated 16 June 2012; a document headed "admission - general" dated 17 June 2012; Princess Alexandra hospital progress notes dated 17 June 2012 (handwritten); a typed document headed "progress notes" dated 17 June 2012; ICU discharge summary dated 18 June 2012; and discharge summary document dated 20 September 2012.
The ambulance records dated 16 June 2012 indicates that the plaintiff had been drinking that night. According to the admission notes from Princess Alexandra hospital, Katherine English recorded that the plaintiff had approximately six drinks.
I accept these records do not reveal what the plaintiff's blood alcohol concentration was at the time of the accident. Nor do the records reveal what type and the volume of alcohol the plaintiff consumed nor the period over which it was consumed.
At the time when the first and second defendants' application for leave to administer interrogatories was heard before Campbell J, the first and second defendants had not yet filed a defence, nor obtained a pharmacology report. At the hearing before Campbell J and before me the first and second defendant's referred to the provisions of ss 48 and 50 of the Civil Liability Act 2002 (NSW). In the original application the significance of these provisions were outlined. The first and second defendants foreshadowed that they intended to plead them in their defence.
Sections 48 and 50 of the Civil Liability Act read: "48 Definition of "intoxication" A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol … 50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced."
As set out in s 50(3) of the Civil Liability Act 2002 (NSW), if the Court is satisfied that the injury was likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the Court is satisfied that the person's intoxication did not contribute in any way to the injury. If the elements of s 50 are established, it operates either as an absolute defence to the plaintiff's claim or gives rise to a finding of contributory negligence of at least 25 per cent.
Senior counsel for the first and second defendant submitted that their current position in this application is different from the first. The first difference is that the first and second defendants have filed a defence pleading s 50 of the Civil Liability Act. However, the first and second defendants concede this is not the reason why Campbell J refused the first application.
The second difference purported by the defendant is what is said in the letter of Dr Helen Dauncy, a pharmacologist, dated 8 November 2016. ("the Dauncy letter"). As set out in s 50(2), a Court is not to award damages in respect of liability unless satisfied that the injury was likely to have occurred even if the person had not been intoxicated. As set out in s 50(1), the section applies when it is established that the person who is injured was at the time of the act or omission that caused the injury intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. The threshold for the application of s 50 is thus establishing that the plaintiff was intoxicated to the extent that her capacity to exercise reasonable care and skill was impaired.
The first and second defendants bear the onus of establishing intoxication and the extent of the intoxication and its causal significance. The defence under s 50 requires the defendants to establish as a threshold point that the plaintiff was intoxicated.

Further interlocutory order

However, where a party seeks a further interlocutory order after a contested hearing, McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 said: "The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see e.g. Wilkshire v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see e.g. Warringah Shire Council v Industrial Acceptance Corporation - McLelland J 22 November 1979 unreported). In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application." (citations omitted).
Dr Dauncy says that she requires specific information about the plaintiff's intake of alcohol on the evening of the fall in order to provide a report of any value at this time. (Aff Peter Ford, 9/11/2016 Annexure "R"). Her letter reads: "You have asked me to provide an opinion on Ms McCallum's likely impairment due to alcohol at the time she fell. For this, her blood alcohol concentration (BAC) at 9:45pm would be, in my opinion, the only useful indicator. Using that information, the probable physical, behavioural and psychological effects of such a BAC on a woman of her characteristics could be estimated. The BAC is important because impairment increases as the BAC rises. However, I am unable to estimate Ms McCallum's BAC and therefore provide a report of any value, without some specific information about her intake of alcohol prior to her fall. BAC is estimated using gender, bodyweight and height of the individual, all of which I have; the duration of the drinking period (which I don't have; time of her first and last drink is needed to account for alcohol lost being metabolised); and the number of drinks, the kind of alcohol and the approximate volume of each drink. Also of assistance would be the nature and time of the food Ms McCallum had eaten prior to her fall as food can alter the absorption rate of alcohol; and the frequency with which she drank a similar quantity of alcohol to that which she consumed before she fell which would provide an indication of her alcohol tolerance."
It is my view that the Dauncy report could have been reasonably obtained and put before Campbell J on the original application.
In the original application for interrogatories which was before Campbell J, the first and second defendants' solicitor deposed the reasons why they needed to administer interrogatories. They are as follows: "25. The First and Second defendant do not know that the Plaintiff's blood alcohol concentration was at the time of the accident. The First and Second defendant do not know what type and volume of alcohol the Plaintiff consumed in the 24 hour period before the accident, and the period over which it was consumed. The plaintiff has so far refused requests to provide this information and it is not contained within the ambulance or hospital records. 26 I am aware from my conduct of the defence of other personal injury matters involving the use of toxicological evidence that a toxicologist can provide an assessment of a person's likely blood alcohol concentration based on the following information: (a) the type of alcohol consumed; (b) the quantity of alcohol consumed; (c) the period over which the alcohol was consumed; and (d) the person's height and weight. 27. Without details of the type and volume of alcohol consumed by the plaintiff prior to the accident, and the period over which it was consumed, the First and Second defendants cannot establish what the Plaintiff's likely blood alcohol concentration was at the time of the accident; whether the Plaintiff was intoxicated at the time o the accident; and if the Plaintiff was intoxicated, was it to such an extent that her capacity to exercise reasonable care and skill was impaired. These matters are relevant to a defence under s 50 of the Civil Liability Act 202 (NSW)." (Aff 4/2/2016, Peter Ford [25] to [27]).
These are same reasons that the first and second defendants have ventilated before me.

The original decision

In McCallum v Reynolds [2016] NSWSC 366, Campbell J relevantly stated: "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. … 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. … 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. … 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. … 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."
Campbell J concluded that he was not of the view that obtaining precise responses for the purpose of submitting them to a toxicologist satisfied the statutory test of necessity in this case. Nor was his Honour satisfied that it demonstrated that special reasons exist for the making of an order in this personal injury case on the basis that an experienced toxicologist would 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 the plaintiff's 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 special reasons.
The Dauncy report does not add anything that would amount to a material change of circumstances. Campbell J had already alluded to the problems that Dr Dauncy speaks of in her letter. There is no material change of circumstances since the original application and it is also my view that the Dauncy report could have been reasonably obtained and put before Campbell J. I agree with Campbell J that the request for interrogatories are not necessary both at the time the original application was made or at this time. Nor has the first and second defendants demonstrated that special circumstances exist.
It is my view that the plaintiff is entitled to give evidence and be cross examined at trial in the usual way. Dr Dauncy is in a position to prepare her report based on what is contained in the hospital and ambulance records as outlined by Campbell J. Her opinion may change depending on what evidence the plaintiff gives in relation to her alcohol consumption. It is also my view that the interests of justice dictate that the first and second defendants should not be granted leave to administer "the interrogatories" to the plaintiff. The first and second defendants' notice of motion filed 9 November 2016 is dismissed.
At the conclusion of the hearing, senior counsel for the first and second defendants made an application, without notice, that in the event that I am against their application, then they would need an order from the Court that they not be required to serve their toxicologist's evidence until after the plaintiff had given evidence. (T25.16-19).
I directed the plaintiff's solicitor to email my associate and the solicitor for the first and second defendants advising as to whether or not the plaintiff will agree to an order that the first and second defendants can serve a pharmacology report after the plaintiff has been cross examined on the alcohol issue as soon as possible. The plaintiff's response (letter from Ms Heisler, Quinn & Scattini Lawyers dated 16/2/2017) is that it is premature for the making of a decision and the answer is "no" at this time and reiterated some of her earlier submissions. Hence, it is my view that this issue is best left for determination by the trial judge.
Costs usually follow the event. The first and second defendants are to pay the plaintiff on an ordinary basis as agreed or assessed.

THE COURT ORDERS THAT: (1) The first and second defendants' notice of motion filed 9 November 2016 is dismissed. (2) The first and second defendants are to pay the plaintiff's cost on an ordinary basis as agreed or assessed.

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: 23 February 2017

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