Scott v Hunter New England Local Health District

Background

1. By statement of claim filed in the District Court on 10 March 2015, the plaintiff alleges that as a result of inadequate and delayed response to his presentation with severe, progressive back pain and other symptoms, he developed osteomyelitis in the spine requiring spinal fusion. Both defendants are alleged to be responsible for a delay from 7 to 21 September 2010 (the date of the plaintiff's admission to John Hunter Hospital). The plaintiff seeks to allege in the PASC that the first defendant was responsible for a further four days' delay because it was not until 25 September 2010 that appropriate antibiotics were administered. The plaintiff was 18 years of age at the time.
2. On 4 December 2018, the plaintiff sought that the first defendant clarify the content of documents which it produced to the plaintiff. The plaintiff was of the view that the records of John Hunter Hospital ("the hospital") which had been produced were incomplete in that they omitted microbiology records and reports, records and charts of all antibiotics prescribed and administered to the plaintiff, and follow-up consultation records.
3. On 4 December 2018, the plaintiff's solicitors wrote to the first defendant's solicitors seeking confirmation that the records provided were complete and/or that they provide additional material within 14 days.
4. On 19 December 2018, a summons was filed seeking to transfer the matter from the District Court to the Supreme Court.
5. On 3 January 2019, the plaintiff was provided with the complete records (Ex B), after which he sought advice from counsel. The plaintiff then provided these records to his medico-legal experts and ultimately received further expert opinions in relation to the matter.
6. On 4 February 2019, orders were made transferring the proceedings from the District Court to the Supreme Court.
7. On 27 March 2019, the plaintiff served the defendants with a report of Dr Bernard Hudson dated 14 March 2019. On 7 June 2019, the plaintiff served the defendants with a report of Dr Neil Cochrane dated 31 May 2019.
8. On 1 April 2019, the plaintiff served on the first and second defendants a PASC and requested their consent to its filing. On 10 May 2019, the second defendant's solicitor advised the plaintiff that they would consent to the filing of the PASC. On 28 May 2019, the first defendant's solicitor advised the plaintiff if they objected to its filing.
9. It is the plaintiff's position that the pleadings must be amended to reflect the issues raised in the material which has been produced.
10. On 1 November 2019, the plaintiff served a supplementary report of Dr Hudson (Ex C).

Leave to amend - general principles

1. The plaintiffs seek leave to file their PASC pursuant to ss 64 and 65 of the Civil Procedure Act 2005 (NSW).
2. Sections 64 and 65 of the Civil Procedure Act relevantly read: "64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. … 65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4) (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: … (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings."
3. The power under s 64 must be exercised subject to s 58 of the Civil Procedure Act. It reads: "58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and … (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case."
4. Subsection 58(2)(a) of the Civil Procedure Act provides that the Court must consider the matters in ss 56 and 57 in order to determine what the dictates of justice are in a particular case. The matters enumerated in ss 58(2)(b)(i)-(vii) may be taken into account by the Court in making its determination. It is not necessary to reproduce ss 56 and 57 of the Civil Procedure Act here.

The pleading in the PASC

1. The statement of claim filed 10 March 2015 did not include references to provisions of the Civil Liability Act. The plaintiff has argued that the amendments seek to remedy this deficiency, but are careful not to significantly expand his case.
2. The amendment contained in para [15] of the PASC is a general one referring to s 50 of the Civil Liability Act. It is uncontroversial and should be allowed.
3. The following paragraphs of the PASC are in dispute: "13 Each of the defendants owed a duty to exercise reasonable care I the management of the plaintiff, and in particular to ensure that the plaintiff did not suffer untreated or inadequately treated discitis and consequent osteomyelitis. 15. For the purposes of s 5B(1)(c) the defendants ought to have taken precautions including: a. on the part of the second defendant, on and from 7 September 2010, adequate assessing and reacting to the plaintiff's presentation of progressive back pain, bilateral leg weakness and sciatic pain and fever; b. on the part of the second defendant, on and from 7 September 2010, adequately communicating the plaintiff's presenting symptoms and signs to the first defendant, c. on the part of the first defendant, on and from 7 September 2010, eliciting adequate history and adequately reacting to the communication by the second defendant of the plaintiff's problems and to recommend urgent assessment and examination in emergency; d. on the part of the first defendant, treating the plaintiff for discitis on and from 7 September 2010; e. on the part of both defendants, ensuring urgent admission to emergency for assessment and treatment of the plaintiff's problems; f. on the part of the first defendant, arranging admission and urgent assessment on 13 September 2010 and commencement of empirical treatment for discitis; g. on the part of both defendants, reacting adequately to the history of fevers and results of the bone scan and MRI on 14 September 2010, namely to arrange urgent admission and commencement of treatment for presumed discitis as and/or vertebral osteomyelitis; h. on the part of both defendants, on and from 18 September 2010, reacting adequately to the abnormal CRP result, namely ensuring urgent admission and commencement of treatment for presumed discitis and/or osteomyelitis; i. on the part of the first defendant, commencing appropriate antimicrobial treatment on 21 September 2010 to cover gram negative bacteria as well as Flucloxacillin. 16. Each of the defendants breached the said duty of care to the Plaintiff. Particulars … i failure on the part of the first defendant to commence appropriate antimicrobial treatment on 21 September 2010 to cover gram negative anaerobes as well as Flucloxacillin.
4. The plaintiff may also amend the word "anaerobes" to "bacteria".

The plaintiff's submissions

1. The plaintiff submitted that there is no significant expansion of his case in the PASC other than what the first defendant calls the "new issues", which presumably concern the delay in administering appropriate antibiotics.
2. On admission to the hospital on 21 September 2010, the plaintiff was diagnosed with discitis/osteomyelitis. Blood cultures were taken and the plaintiff was started on the antibiotic Flucloxacillin. He alleges that the blood cultures taken on his admission to the hospital identified fusobacterium as the responsible organism, which required particular antibiotics. These were belatedly commenced on 25 September 2010. He alleges that it may be inferred from the records that on 21 September 2010, the registrar believed that fusobacterium was only a contaminant in the blood cultures, but recorded no explanation as to why.
3. The plaintiff submitted that there is no good reason for the first defendant's opposition to the amendments of substance, which it calls the "new issues". They are supported by expert evidence (report of Dr Hudson 14 March 2019 and 1 November 2019 (Ex C)), and the facts are derived from the first defendant's records. The first defendant has asserted no actual prejudice.
4. When the first defendant originally provided records in 2015, they were incomplete. The plaintiff did not realise that microbiology results and records of prescribed antibiotics were missing until late 2018. The missing records were, on request, supplied (see Ex B). The fact that no expert had previously mentioned the antibiotic treatment is not surprising in light of the missing records.
5. Moreover, the plaintiff submitted that it would not be fair to deny him the opportunity to pursue the expanded case, given that one of the defendants' causation experts, Dr John Stephen, argues that the disc was doomed by the difficulty of controlling the infection. The plaintiff's case is that the infection was difficult to control, not only because of extensive delay but because the wrong antibiotics were administered for several days.
6. Accordingly, the plaintiff submitted that the first defendant's basis for the opposition of the amendments in the PASC is misconceived.

The first defendant's submissions

1. The plaintiff seeks to amend his case to include allegations of negligence relating to his treatment in hospital on 21 September 2010. To date, treatment provided by the hospital has not been in issue.
2. In particular, the first defendant took exception to subpara 15(i), regarding failure on the part of the first defendant to commence appropriate antimicrobial treatment on 21 September 2010 and not commence such treatment until 25 September 2010; subpa 16(i), regarding failure by the first defendant to commence appropriate antimicrobial treatment on admission on 21 September 2010; and to the extent that any previously pleaded failures can be interpreted to cover the period from 21 September 2010.
3. The plaintiff explains the delay because he made a request on 4 December 2018 asserting that the hospital records were incomplete. Further records were provided by 3 January 2019 and "on receipt of the additional records", the plaintiff sought advices from counsel. Reports of Dr Bernard Hudson dated 14 March 2019 and then of Dr Neil Cochrane dated 31 May 2019 were served on the first defendant. The plaintiff says that he previously lacked the opportunity to seek expert opinion on various issues, given that the records were not in his possession.
4. By his report dated 14 March 2019, infectious diseases specialist Dr Bernard Hudson noted that since the preparation of his original report dated 31 August 2014, "[the plaintiff has] been sent a compact disc (CD) of records of John Hunter Hospital". He set out the history of antibiotic treatment at the hospital and concluded there was a delay before any antibiotic therapy effective against fusobacterium was implemented. He concluded that on the balance of probabilities, the management of the patient, which included the administration of empiric Flucloxacillin, then empiric gentamicin on 23 and 24 September 2010 (delaying the targeted treatment for fusobacterium species until 25 September 2010), would have negatively impacted on outcomes. However, he opined that this negative impact was much less than that caused by the delay between 7 and 21 September 2010, as described in his original report dated 31 August 2014. He stated that the delay from 21 to 25 September 2010 would have been avoided if the organism had not been dismissed as a contaminant, or if empiric combination therapy had been used from the outset.
5. The first defendant submitted that Dr Hudson has not alleged negligence, but merely asserted that with the benefit of hindsight, there was a delay in the administration of an effective antibiotic.
6. By his report dated 31 May 2019, Dr Neil Cochrane, consultant neurosurgeon, noted he had reviewed the report of Dr Hudson dated 14 March 2019 and agreed with his assertion that as a result of the antibiotics used, and the delay in confirming that the ultimate fusobacterium was in fact a pathogen, "the treatment was ultimately suboptimal, delayed in its initiation, and significantly altered the outcome", but "much less than the delay between 7 and 21 September 2010".
7. Neither Dr Hudson nor Dr Cochrane specifically stated that the antibiotic treatment provided to the plaintiff on admission to the hospital on 21 September 2010 was in breach of the standard of care imposed by s 50 of the Civil Liability Act.
8. In addition, Dr Hudson did not identify in his report dated 14 March 2019 any information that was not available to him when he prepared his original report dated 31 August 2014. For the purposes of his 14 May 2019 report, he repeated the summary of illness contained in his 31 August 2014.
9. The first defendant also made several submissions concerning the proposed amendments to the PASC.
10. Firstly, the first defendant argued that the plaintiff has provided no reasonable explanation for the delay in seeking expert opinion relating to treatment at the hospital from 21 September 2010. Dr Hudson was not asked until 2019 to consider the plaintiff's treatment at the hospital.
11. Secondly, the amendments are late in the proceedings and out of time. The plaintiff commenced proceedings in March 2015, and has had access to the opinion of an infectious disease expert since at least 2014. While the first defendant conceded that the plaintiff may at any stage of proceedings seek leave to amend any document in the proceedings, it submitted that the amendments do not seek to correct any defect or error in the proceedings or to avoid multiplicity of proceedings. The first defendant argued that having regard to the overriding purpose set out by ss 56 and 58 of the Civil Procedure Act, consideration should be given to the fact that further delay will result from the additional time the defendant will require to address the new issues raised.
12. As earlier, the first defendant argued that Dr Hudson never directly asserted that the standard of care provided by the hospital was not competent. Dr Hudson does not support the allegations that there was a failure on the part of the hospital to commence appropriate antimicrobial treatment "[on admission] on 21 September 2010" as pleaded at paragraph [15(i)] of the PASC. Dr Hudson's report would not be sufficient to establish a breach of duty of care, even if uncontradicted, for the purposes of r 31.36 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). As such, the first defendant submitted that the proposed amendments concerning treatment after 21 September 2010 is not supported by expert evidence.
13. Thirdly, the amendments to the PASC are sought after the expiry of the limitation period. The proceedings were not commenced within three years after the pleaded events in September 2010 in any event, as the statement of claim was filed 10 March 2015 (the first defendant has pleaded limitation as a defence pursuant to ss 50C and 50D Limitation Act 1969 (NSW)). The plaintiff does not assert any mistake in the name of a party, and seeks to plead new facts and circumstances separate to those previously relied upon, covering a different time period. These proposed amendments will require further expert opinion from the first defendant, and also probably from the second defendant, as well as enquiry and identification of relevant lay witnesses to permit the proceedings to be property defended.
14. The first defendant further argued that the new allegations amount to a new case, arising out of separate facts, circumstances and time period.
15. The first defendant submitted that the nine year delay gives rise to presumptive prejudice, with actual prejudice arising from the costs thrown away and lost opportunities to either defend or resolve the proceedings. This is highlighted by the proposed interrogatories directed at events in 2010.
16. In conclusion, the first defendant submitted that the plaintiff's proposed amendments relating to treatment at the hospital from 21 September 2010 are too late, out of time, prejudicial to the first defendant and unsupported. They should not be permitted.

Consideration

1. These proceedings have not yet been allocated a hearing date.

Explanation for delay

1. The first defendant contended that the plaintiff did not provide an adequate explanation for his delay in making the amendments set out in the PASC. The explanation is that it was only in March 2018 that the second defendant served a report of Dr John Stephen, who says that as at 14 September 2010, the MRI was showing reactive changes in the L5/S1 disc, indicating the difficulty in controlling the infection after discharge. The plaintiff's legal representatives had never turned their minds to the difficulty in controlling the plaintiff's infection after discharge from hospital, as his fever went down and he seemed to get better.
2. It was in early January 2019 that the plaintiff received the traditional microbiology results which had not been included in the CD supplied to him earlier. In the latter discs was an entry titled, "21/9/14 14.40 gram negative". The plaintiff submitted that this entry suggests that there was knowledge that a gram negative was involved.
3. After receiving Dr Stephen's report, the plaintiff's solicitors forwarded the CD records to Dr Hudson. In March 2019, he reported that there should have been cover for gram negatives, not just organisms like staphylococcus for which Flucloxacillin would be useful. That is what led the plaintiff's legal representatives to seek to add the extra three or four days until 25 September 2010.
4. It is my view that this explanation for delay is reasonable.

Reports of Dr Bernard Hudson

1. Dr Hudson is a specialist pathologist who has worked in the field of clinical microbiology since 1989. In his latest report dated 1 November 2019, Dr Hudson refers to the delay of three days before the plaintiff was administered with the appropriate therapy for fusobacterium vertebral osteomyelitis/discitis. He noted: "• There was a further delay of three (3) days before the implementation of therapy appropriate for Fusobacterium vertebral osteomyelitis/discitis. • Mr Scott required prolonged antibiotic treatment for the Fusobacterium vertebral osteomyelitis/discitis • Despite this therapy, Mr Scott's infection recrudesced in July 2011 according to the assessment on 28 July 2011, almost one (1) year after his illness onset. • Despite this therapy, as at 5 July 2012, assessment of cure was unable to be done or guaranteed with Mr Scott according to the assessment on this day. • Despite this therapy, as at 15 February 2013, Mr Scott has not fully recovered from the infection as he still has back pain and problems with ejaculation. This was approximately two and a half (2.5) years after his illness onset. • Based upon the above observations, in my opinion, based on the information contained in the documents provided to me, one cannot guarantee that the infection has been completely eradicated. • Based upon the above observations, therefore, in my opinion, based on the information contained in the documents provided to me, one cannot guarantee that the infection will not relapse. • Based upon the above observations, in my opinion, based on the information contained in the documents provided to me, it is more likely than not that Mr Scott has suffered irreversible damage to bone, adjacent soft tissues and nerves from the infection • Based upon the above observations, in my opinion, based on the information contained in the documents provided to me, it is more likely than not that, had the diagnosis of vertebral osteomyelitis/discitis been made earlier than it was, it is more likely than not that the infection would have been eradicated and never relapse and that Mr Scott would have avoided irreversible damage from the infection. • Fusobacterium was grown from blood cultures as well as from the vertebral disc aspirate - the organism was not spectated and antibiotic susceptibility testing was not done."
2. Dr Hudson opined: "On Page 7 of my report dated 14 March 2019, I indicate that, in general, empiric antibiotic therapy for vertebral osteomyelitis should cover aerobic Gram negative organisms. Was it appropriate that such cover was not provided for Mr Scott, and if not, why not? It was inappropriate that such cover was not provided for Mr Scott. Empiric treatment should be commenced for vertebral osteomyelitis to cover both Gram negative and Gram positive organisms, whilst awaiting results of cultures. This has been discussed in my previous supplementary report dated 14 March 2019. The two most common organisms that cause vertebral osteomyelitis are Staphylococcus aureus, followed by aerobic Gram negative organisms (e.g. E.coli, Klebsiella species). In general, empiric antibiotic therapy should cover these common organisms. My preference is to administer anti-staphylococcal therapy (either flucloxacillin or vancomycin if MRSA is possible) plus cover for Gram negative aerobic organisms (ceftriaxone, piperacillin-tazobactam, anti-pseudomonal cephalosporins). When the causative organism is not known, such combination empiric therapy should be given. Some practitioners administer gentamicin for 48-72 hours until microbiology results have become available, after which targeted therapy for the microbial cause is prescribed. It is unlikely that empiric therapy would be given to specifically cover Fusobacterium species as such organisms are rare causes of vertebral osteomyelitis. It is more likely that treatment would be changed once such an organism had been detected. This is what occurred, but no until 36-48 hours after the preliminary result had become available. If anti-staphylococcal therapy plus ceftriaxone, piperacillin-tazobactam or anti-pseudomonal cephalosporins had been given as part of empiric therapy (as described above), then inadvertently adequate therapy for Fusobacterium species would have been given following the CT guided biopsy done on 22 September 2010."
3. Dr Hudson does not allege negligence in his reports, nor that the admission to hospital on 21 September 2010 was in breach of the standard of care as set out in s 50 of the Civil Liability Act. However, in Salzki v Khoury [2009] NSWCA 195, the Court of Appeal discussed the requirements of an expert report under UCPR 31.36. The opinions expressed in an expert's report as to any one or part of the elements of breach of duty of care, damages or causation, may assist in providing the support contemplated by the rule. The opinions may only support a single link in the chain that constitutes the plaintiff's case. Opinions of that kind are nevertheless relevant in determining whether there has been compliance with UCPR 31.36(1). The contents of both Dr Hudson's and Dr Chochran's reports satisfy these requirements. While the first defendant disagrees that the report supports the proposed amendments, that issue is one for the trail judge to determine. Currently the first defendant has not served a microbiology report.
4. I accept that with the passing of nine years since the alleged negligence occurred, there will be some presumptive prejudice. The statement of claim was filed on 10 March 2015. While the first defendant contended that it suffers from actual prejudice, it has relied upon no evidence.
5. The first defendant submitted that the new allegation constitutes a new case arising out of separate facts and time periods. However, the plaintiff alleges that the first defendant negligently delayed his treatment, which caused him to undergo a spinal fusion. That delay in treatment led to an infection increasing in severity, so that it was difficult to control when he was discharged from hospital. This allegation extends the period of the infection by three or four days. In my view, these allegations arise out of substantially the same facts, namely, the delay in the plaintiff receiving appropriate treatment giving rise to an existing cause of action pursuant to s 65(2) of the Civil Procedure Act. These amendments can be made even after the limitation period has expired. The proposed amendments raise real questions to be tried.
6. Taking these reasons into account and in the exercise of my discretion, I allow the amendments in the PASC. Leave to file and the PASC is granted pursuant to s 64(1) of the Civil Procedure Act within 14 days.

Interrogatories

1. The legal principles are not in dispute.
2. Rule 22.1 of the UCPR relevantly reads: "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. …"
3. In order for the Court to order the first defendant to answer interrogatories, the plaintiff must establish that: 1. the proposed interrogatories are relevant or material; 2. the proposed interrogatories are necessary or reasonably required, in the interests of a fair trial; and 3. special reasons exist that justify the making of the order.

Special reasons

1. UCPR 22.1(3)(b) requires the court to be satisfied that special reasons exist justifying the making of the order in claims for damages arising out of bodily injury to a person. As the party seeking an order for interrogatories, the plaintiff bears the onus of establishing the existence of special reasons and necessity: see O'Meara v Dr Arianayagam [2006] NSWSC 797 at [2].
2. In Haywood v Collaroy Services Beach Club [2005] NSWSC 1203, Rothman J set out the special reasons that justified making the order for interrogatories at [15]: "[15] The issues, upon which questions are sought, like the earlier interrogatories: a. Are concerned with subjects that, as between the parties, are largely or peculiarly within the knowledge of the defendant; b. Involve complex questions going to the relationship (legal and otherwise) between the defendant and third parties; c. Would, for the plaintiff, otherwise be very difficult or impossible to prove or would be such that probative evidence on such issues would be difficult or impossible to obtain."
3. In Priest v State of NSW [2006] NSWSC 12, Johnson J stated at [127]-[128]: "[127] The creation of the "special reasons" test in Part 23 r 5 SCR in 1996 strengthened what was always a prima facie prohibition upon discovery in claims for personal injury: Haywood v Collaroy Services Beach Club Limited [2003] NSWSC 43 at paragraph 15. The rule represents an intention that discovery in personal injury cases will be rare, and will be ordered only where special reasons are made out: Haywood at paragraph 20. [128] Not surprisingly, there is no definition of "special reasons" in the SCR (or UCPR). The Shorter Oxford Dictionary defines "special" as meaning "of such a kind as to exceed in some way that which is usual or common" and also "exceptional in character, quality or degree." The application of Pt 23 r 5 SCR (Pt 21.8 UCPR) should be approached giving to "special reasons" the meaning that expression would ordinarily convey in common English usage, whilst having particular regard to the statutory setting in which the language is used: B v Gould (1993) 67 A Crim R 297 at 300. The core of the requirement for "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535-6 (paragraph 18); Binks v North Sydney Council [2001] NSWSC 27 at paragraphs 9-10."
4. In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498, Garling J stated of the requirement for special reasons at [49]-[51]: "[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 IllawarraArea 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]-[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."
5. Finally, in Cavric v Coopers & Lybrand (ACT) Ltd [2002] NSWSC 538, I stated at [13]: "[13] "Special" can be said to be exceptional, has a distinct, individual or instrumental character. "Special" indicates to the decision maker that the discretion is one which is not lightly enlivened. However "special reasons" is an elastic instruction suitable for application across a range of situations."

Prior application to administer interrogatories

1. The plaintiff has previously made an application to administer interrogatories in relation to the first defendant. It was heard by Taylor DCJ on 14 June 2018. His Honour dismissed the plaintiff's notice of motion. The interrogatories have now been reframed in the light of his Honour's reasons for judgment. It is important to note that at [21] of his decision, before dismissing the notice of motion, Taylor DCJ stated that this decision was not intended to preclude an order for a precisely focused interrogatory on an issue that is shown to be crucial to the dispute between the parties.
2. The first defendant says that the proposed interrogatories are irrelevant and unnecessary. No special circumstances exist. In any event, the first defendant has argued that the interrogatories maintain a form of a roving enquiry in the nature of a cross-examination, and do not relate to the notion of the interests of a fair trial.
3. The first defendant says that the provision of answers to the interrogatories will not progress matters in any meaningful way, and that the proceedings can fairly proceed in the absence of an order for further interrogatories. The second defendant has answered interrogatories.
4. The first defendant has made specific submissions in relation to each interrogatory which I will refer to in due course. There are nine interrogatories that fall into three broad categories. Interrogatories 1 to 4 relate to a conversation between the plaintiff's general practitioner and either Dr Edger or Dr Jakody on 7 September 2010, and their reasoning process in providing their resultant advice. Interrogatories 5, 6 and 7 ask what information was provided when Dr Doorenbosch requested an MRI and bone scan on 14 September 2016, and what action was taken when the results were received. Interrogatories 8 and 9 address the reasoning of Dr Luu for deciding there was a contaminant.

Relevant clinical notes and reports

1. Before I deal with whether interrogatories 1 to 9 should be administered, it is helpful to set out some clinical notes of both the first and second defendants, bearing in mind that the second defendant has answered the earlier iteration of the interrogatories.
2. The second defendant, the plaintiff's general practitioner, has answered an older iteration of interrogatory 1. It is as follows: "2D - I have a patient I'd like to speak to you about. I have an 18 year old male who had a fall about 3 weeks ago whilst skiing. He jarred his back and developed back pain, but was able to continue skiing. About 2 weeks ago, he saw a physio after his back pain got worse. He reports feeling weak in the legs when standing and moving and he has some pain down his left leg and buttocks. I have examined the patient and his neurological examination was completely normal. His power, sensation and reflexes are all normal and the bladder and bowel function is normal. However, he is very tender over the left sacroiliac joint and left buttock. He has had a CT scan and it show a spondylolisthesis of 4mm at L5/S1. My impression is mechanical lower back pain after a fall on a background of spondylolisthesis. However, he is young and having to use crutches to get around. I would appreciate your early review. Dr Jakody - We can fit him into the next clinic on Tuesday, 14 September with Dr Edger. Based on what you've told me, he doesn't need to be seen today."
3. The second defendant, in his notes dated 7 September 2010, stated: "3 weeks ago fell heavily on backside whilst skiing, jarred back but continued to ski 2 weeks ago lower back pain worsened so went to physio, next day: Severe lower back muscle spasm++ Weakness in both legs more than right associated left leg and pain down his left leg and buttock when he stands More comfortable lying down unless has to move CT scan shows spondylolisthesis L5/S1, 4mm Discussed with neurosurgical registrar Suggest seeing Dr Edgers clinic next neurosurgical clinic Referral let to Dr Edger [dated 7 September 2010] Thank you for seeing Cooper Scott, age 18 years, for an opinion and management. He presented today with a nine day history of severe lower back pain and associated weakness in both legs. It seemed to follow a delayed course after a jarring fall at the snow 3 weeks earlier. His bowel and bladder function is normal, his power is normal when checked supine, reflexes diminished bilaterally KJ=+ AJ=++. His symptoms all worsen including his perception of being weak, when he stands, he seems to localize of over his left SIJ. He had CT scan done which showed prob old spondylolisthesis L5/S1 of 4mm I suspect his pain is from his SIJ, but given that he is a young man getting about on crutches because he feels he can't walk, appreciate your review. I have given him some strong analgesia and NSAIDs meanwhile."
4. This referral was not sent directly to Dr Edger but to the first defendant's administration.
5. On 14 September 2010, the plaintiff was seen in the neurosurgical outpatient clinic by Dr Doorenbosch, who wrote a letter and organised an MRI of the lumbosacral spine, plain x-ray and bone scan. Dr Doorenbosch wrote in his clinical notes, "To be reviewed after those investigations".
6. Dr Doorenbosch reported: "I reviewed Cooper in the Neurosurgical Outpatient's Clinic today. As you know, Cooper had a car accident a year ago and since then has been receiving physiotherapy for ongoing mild lower back pain. He was still able to resume normal activities like playing football without any problems. About three week ago however, he had a fall whilst skiing and has noticed that he has had increasing lower back pain since. It was worse when he woke up about two weeks ago and was unable to get out of bed because of the pain. Cooper describes that he has severe aching lower pain around the lumbosacral region with radiation down both legs posteriorily. He says that the pain initially for a few days was quite sharp and shooting down both legs with some pins and needles. However the character of the pain is now changed and feels more like an aching-type pain down both legs posteriorily into his foot. He says that he cannot get comfortable and needs to constantly change position to get some mild relief. I understand he is on Tramadol, paracetamol and Iburprofen. On examination, he is neurologically grossly intact. His reflexes are intact and of normal intensity bilaterally in knees and ankles. His power is 5/5 and sensation is intact to gross touch. His straight leg raise is slightly reduced on the right side. The CT scan of his lumbrosacral spine shows a Grade 1 anterolisthesis of L5/S1 with bilaterial pars defects. We have arranged for Cooper to have an MRI scan of his lumbosacral spine to assess if there is any nerve compression associated with the spondlyloisthesis. He is also to have a flexion and extension plain X-ray of his lumbosacral spine to assess for dynamic changes in the lumbrosacral spine or in the sacral iliac joints. Additionally, I have started him of Diazepan 5 mg three times a day to help with the muscular spasm component of his pain. I will review Cooper again following these investigations."
7. The report of the bone scan ordered by Dr Edger/Dr Doorenbosch on 14 September 2010 relevantly stated: "Clinical History 3 weeks history of acute onset and sacroiliac region pain. Difficulty with weight bearing. Unexplained fevers and sweats over the past 3 days. History of pain exacerbated by mild trauma on two occasions over the past few weeks. Background of long-standing intermittent mild low back pain. History of previous sporting injury involving muscle attachment in the right pelvis region. CONCLUSION 1. The bone scan demonstrates bilateral scrolilitis. This may be the primary cause for the patient's pain and represent reactive arthritis secondary to infection or possibly HLA-B27 related arthritis. I note that the patient has no history of psoriasis, inflammatory bow disease or ankylosing spondylitis. 2. Destructive process involving L5/S1 most marked in the superior endplate of the 1st sacral segment. This is associated with spondylolisthesis that is not recent and may relate to a degenerative process. However, active discitis or focal infection in this region may also account for the patient's pain, unexplained fever and sweats and central localised pain. This may also contribute to secondary sacroilitis related to a mechanical cause. If clinically indicated further investigation with gallium 67 can be undertaken to confirm or exclude active discitis or focal infection in this region."
8. The MRI report recorded: "Clinical History L5/S slipped. ? nerve compression Lumbosacral MRI Technique Sagittal T1 and T2 and sagittal STIR were performed and axial T2. Report The conus lies at L1 and appears intact and there is no paravertebral mass. Above L4 the discs, canal, exit foramina and nerve roots are intact. At l4/5 there is a central broad-based protrusion which is not causing nerve root compression. The exit foramina and nerve roots are intact. At l5/S1 there is a bilateral spondylolysis and a forward slip of 5mm. There is some degenerative central disc protrusion which is not causing nerve root compression. The exit formina show mild stenosis but without nerve root compression. Reactive changes are seen in the sub-endplate of L5 and S1. Conclusion: L5/S1 spondylolysis/spondylolisthesis without identified nerve root compression."
9. Between 14 September 2010 and 21 September 2010, there is no recorded action taken by the first defendant.
10. On 18 September 2010, the CRP result of 17 September 2010 reported 84.5, and was sent to Dr Adamski and copied Dr Edger. The EST reported as 46 (N, 20). On 21 September 2010, the plaintiff was admitted to the hospital where he had blood cultures taken. On 22 September 2010, a CT biopsy was performed and the plaintiff commenced taking Flucloxacillin. The "microcumulative" microbiology results of the hospital include "Gram neg…" copy incomplete. Dr Luu wrote that gram neg was a "contaminant". On 25 September 2010, the infectious disease consultant commenced the plaintiff on tazocin for gram negative anaerobes.

Interrogatories 1 and 2

1. Interrogatories 1 and 2 read as follows: "1. Did Dr Jakody of the first defendant receive a phone call from the second defendant concerning the plaintiff on 7 September 2010, and if so, set out in as much detail as possible the substance of the conversation by reference to: i. what information was provided by the second defendant to Dr Jakody; ii. what questions were asked by Dr Jakody if any seeking further information; iii. what the second defendant said in response; [and] iv. what advice, if any, was provided to the second defendant by Dr Jakody in relation to management of the plaintiff, including but not limited to when and where the plaintiff could be seen at the hospital.
2. Did Dr Edger of the first defendant receive a phone call from the second defendant concerning the plaintiff on 7 September 2010, and if so, set out in as much detail as possible the substance of the conversation, by reference to: i. what information was provided by the second defendant to Dr Edger; iii. what questions were asked by Dr Jakody, if any, seeking further information; iii. what the second defendant said in response; [and] iv. what advice if any was provided to the second defendant by Dr Edger in relation to management of the plaintiff, including but not limited to when and where the plaintiff could be seen at the hospital."

The plaintiff's submissions

1. In the liability report that he has served, Dr Roche is said to have sought the registrar's "advice", and that he "adequately communicated Mr Scott's presenting symptoms and signs". There is evidence that the call was made to neurosurgery registrar Dr Jakody, but there is also evidence that the arrangement was made with neurosurgeon Dr Edger. Despite the plaintiff's deterioration, he was not seen for another seven days.
2. The plaintiff's case is that he should have been seen the same day. The delay of one week involving non-treatment of an infection in the tissue of or around the spinal cord or disc is significant to causation. The relative responsibility, if any, of Dr Adamski and/or Dr Jakody (or Dr Edger, if the call was made to him) will largely be determined by what passed between them, namely the adequacy of the information provided by phone by Dr Adamsky to Dr Jakody (or Dr Edger), and what information, if any, was sought by the latter. Dr Adamski has provided answers relating to the content of the call and says that Dr Jacody told him that based on the information Dr Adamski told him, he did not need to be seen that day.
3. The second defendant served an expert report by Dr Henschke, who stated, "[I]f Dr Jakody believed that he had insufficient history or examination details from Dr Adamski, he could have requested Mr Scott be seen in casualty that day". In a subsequent report, he stated, "[Th]e neurosurgical registrar made the decision for Mr Scott to be seen at the next neurosurgical clinic on 14 September 2010".
4. Evidently, what the second defendant stated to the first defendant, and exactly what information the first defendant sought from the second defendant, is highly relevant to the plaintiff's case against each defendant, and to determining apportionment if that were to become necessary.
5. There is no written record of the telephone contact in the hospital records and no record of the content of the call in the second defendant's records, apart from the suggestion that the plaintiff be seen in the clinic. The plaintiff has no other way of eliciting this information. There could well be two competing versions as to what occurred in the call. The plaintiff submitted that the versions should be elicited well before conclaves, let alone the hearing.

The first defendant's submissions

1. The first defendant submitted that the proposed interrogatories are not relevant or material, nor are they necessary or reasonably required in the interests of a fair trial. The first defendant submitted that no special reasons exist that justify the making of an order for the interrogatories.
2. The first defendant made the following observations regarding the annexures to Mr Schipp's affidavit dated 31 January 2018: 1. the proposed interrogatories were considered and rejected by Judge Taylor in 2018 (see KB, Annexure M, page 128); 2. on 7 September 2010, Dr Adamski referred the plaintiff to the hospital for "the Tuesday clinic for Dr Edger" [14 September 2010] and set out the plaintiff's history (see KB, Annexure M, page 108); and 3. the interrogatory is adequately answered from the second defendant's clinical records (see KB, Annexure M, page 100).
3. Regardless, the first defendant argued that the plaintiff has the benefit of the Statement in Answer to Interrogatories from the second defendant, Dr Mark Adamski. In those answers, Dr Damski confirmed his phone conversation with Dr Jakody on 7 September 2010 and set out the substance of the conversation.
4. Interrogatories 1 and 2 suffer from the same defects raised by the hospital and considered by Judge Taylor. The first defendant argued that the plaintiff has not demonstrated that special circumstances exist. There is no reason why the plaintiff's case that he should have been seen the same day cannot be pursued, regardless of its merits. The first defendant argued that the interrogatory is a fishing exercise, the purpose of which is not clear given the available correspondence (particularly the letter from Dr Adamski to the hospital dated 7 September 2010, CB 108) which is, in effect, a record of the content of the call.

Consideration

1. Dr Jakody was a neurosurgery registrar. The second defendant provided answers to interrogatories in which he says that he spoke to Dr Jakody. The second defendant wrote a referral addressed to Dr Edger, a neurosurgeon.
2. At best, the plaintiff may have heard the second defendant speak on the phone to a medical practitioner of the first defendant. He was not privy to both sides of the conversation. It seems more likely that the second defendant's conversation was with Dr Jakody than Dr Edger. I agree that what the second defendant said to the first defendant, and what information the first defendant sought in response, is highly relevant, if not central, to the plaintiff's case. I also accept that the doctors, now nine years after the conversation occurred, may not be able to recall what was said. If that is the case, they can rely on their usual practice. When the medico legal experts write their joint report, they may be asked to express their opinion once they are appraised of both doctors' versions of the conversation, and also in the alternative, they may be asked their opinion in relation to each version. This will be beneficial in addressing the real issues at trial. For these reasons, these answers to interrogatories are necessary and in the interests of a fair trial. As the plaintiff was not privy to both sides of a medical conversation between both defendants, in my view these constitute special circumstances.
3. Further, even if the second defendant and Dr Jakody (if he provides a statement) and when the first and second defendants give evidence and are cross examined as to the conversation, they may expanded or alter its contents. These versions could be put to the medico legal experts when they give concurrent evidence at trial. Even though it appears more likely that the conversation was between Dr Jakody and the second defendant, I will allow interrogatories 1 and 2 to be asked of both Drs Jakody and Edger, on the basis that my assumption may be incorrect. Hence, I order that the first defendant answer interrogatories 1 and 2.

Interrogatories 3 and 4

1. Interrogatories 3 and 4 read as follows: "3. During the conversation referred to in 1, did Dr Jakody give thought to possible causes for the plaintiff's presentation and if so, what potential causes did he consider?
2. During the conversation referred to in 2, did Dr Edger give thought to possible causes for the plaintiff's presentation and if so, what potential causes did he consider?"

The plaintiff's submissions

1. The plaintiff submitted that interrogatories 3 and 4 are necessary because, as stated above, part of the second defendant's case is that it was the first defendant who decided that it was appropriate to consult the after seven days. The appropriateness of such advice must depend substantially on the information sought.

The first defendant's submissions

1. The first defendant submitted that these proposed interrogatories are not relevant or material, nor are they necessary or reasonably required in the interests of a fair trial. No special reasons that exist that justify the making of an order for these interrogatories.
2. As noted above, it is known from the available records that on 7 September 2010 Dr Jakody spoke on the telephone from the hospital with Dr Adamski. The outcome of the conversation was that an appointment was made for 14 September 2010 that resulted in referral for an MRI and a bone scan.
3. The plaintiff seeks to justify the interrogatories on the grounds that it is the second defendant's case that it was the hospital that decided that a consultation seven days later was appropriate. The first defendant submitted that this is not evident from the second defendant's statement in answer to the interrogatories. Rather, the second defendant stated that his impression "is mechanical lower back pain after a fall, on a background of spondylolisthesis. However, he was young and having to use crutches to get around. I would appreciate your early review". According to the second defendant, Dr Jakody said words to the effect of, "We can fit him into the next clinic on Tuesday, 14 September with Dr Edger. Based on what you've told me, he doesn't need to be seen today".
4. Again, this is consistent with the letter dated 7 September 2010 from Dr Adamski to Dr Edger, and which confirms that he "spoke to Dr Jakody the neurosurg reg, who asked that [the plaintiff] be fitted into the Tuesday clinic for Dr Edger".

Consideration

1. It is my view that Dr Jakody, the registrar to whom the second defendant spoke, would have made a considered decision to not to see the plaintiff that day but to wait until the next outpatients' clinic seven days later. The reasons for making this decision need to be provided, as the plaintiff cannot know what took place in the doctor's mind. The reasons are not set out in the hospital records. These constitute special circumstances, and in my view these interrogatories are necessary in the interests of a fair trial. Interrogatories 3 and 4 are allowed.

Interrogatories 5, 6 and 7 Interrogatories 5, 6 and 7 read as follows: "5. Look at Annexure A [Annexure A is a report of Douglas Howarth dated 14 September 2008 in relation to a bone scan, which I have summarised earlier in this judgment]: i. Did Dr Doorenbosch of the first defendant request the bone scan, and if so, did he/she provide any clinical history in doing so? ii. If Dr Doorenbosch did provide a clinical history, set out in as much detail as possible the history provided. iii. Did Dr Edger of the first defendant request the bone scan, and if so, did he provide any clinical history in doing so? iv. If Dr Edger did provide a clinical history, set out in as much detail as possible the history provided. 6. Look at Annexure A. Did a medical officer of the first defendant read the contents of the report of the bone scan of 14 September 2010 and if so: i. When was the first time the medical officer read it? ii. Set out what action or actions, if any, were taken by the medical officer in response to the said report. 7. Look at Annexure B [Annexure B is a report of Dr Colin Walker 15 dated 16 September 2010 that I summarised earlier in this judgment]. Did a medical officer of the first defendant read the contents of the report of the MRI scan of 14 September 2010, and if so: i. When was the first time the medical officer read it? ii. Set out what action or actions, if any, that were taken by the medical officer in response to the said report."

The plaintiff's submissions

1. The plaintiff was seen in the outpatients' clinic on 14 September 2010. There is no record of the assessment, apart from a letter written by the registrar Dr Doorenbosch "for Dr Edger", neurosurgeon. A bone scan was ordered. The clinical history on the report included "unexplained fevers and sweats over the past three days". The significance of this letter is the knowledge of the combination of severe back pain and fevers. An MRI scan was also ordered. The letter says that the plaintiff would be "reviewed", but no follow up or other action was recorded in the letter or in any other hospital record.
2. The report of the bone scan 14 September 2010, naming Dr Edger as the person referring the patient, included findings of intense increased uptake of radio tracer at L5/S1 "with an appearance of erosive bony loss" and the possibility of active discitis or focal infection, with a suggestion as to other possible investigations.
3. The report of the MRI of 14 September 2010 includes the statement that "reactive changes are seen in the sub endplate bone at L5/S1". (Dr Stephen, the orthopaedic surgeon qualified by the second defendant, says that the changes of the MRI of 14 September 2010 and bone scan were changes of early osteomyelitis.)
4. There is no hospital record acknowledging either of these findings, or taking further action in response to them, prior to 21 September 2010.

The first defendant's submissions

1. The first defendant submitted that the plaintiff argues that interrogatory 7 is necessary on the grounds that the clinical history on the report included "unexplained fevers and sweats over the past 3 days" (see CB, Annexure M p 36 (incomplete)). The significance was the knowledge of the combination of severe back pain and fevers.
2. However, the first defendant submitted that the clinical history is set out clearly in the report of the bone scan dated 14 September 2010. It is not the hospital's document. The plaintiff is open to admit or reject the history or clarify to whom he gave the history. It is not evident what legitimate purpose the interrogatories could serve.
3. The first defendant submitted that these proposed interrogatories are not relevant or material and are not necessary or reasonably required in the interests of a fair trial. No special reasons exist that justify the making of an order in relation to them.
4. Both questions 6 and 7 are in the same form, and refer to the MRI scan of 14 September 2010. The report notes a consultation date of 14 September 2010 and report dated 15 September 2010. The plaintiff has argued that the hospital's records do not record the findings or take further action in response to them prior to 21 September 2010. It is not explained why this information is required or why it is relevant. Further, the first defendant submitted that it is clear what occurred after the bone scan and the MRI.
5. On 16 September 2010, the plaintiff attended the second defendant (CB 101) who, the same day (CB Annexure G, 127) referred the plaintiff back to Dr Edger for further review. The second defendant noted that the MRI excluded any nerve root compression, but also that his bone scan showed his SIJ was inflamed and increased uptake at L5/S1. The second defendant ordered a gallium scan and asked the plaintiff to purchase a thermometer and either confirm or exclude fever.
6. On 21 September 2010, a gallium scan showed discitis and the plaintiff was admitted to the hospital. Prior to that day, the plaintiff was seen once on 14 September 2010 at the outpatients' clinic at the hospital. The plaintiff has had access to all available clinical records, clinical notes and referrals.
7. Again, the first defendant submitted that Judge Taylor considered the interrogatories unnecessary because the contemporaneous record is already detailed. Other records also provided information on the matters in the interrogatories. The plaintiff has not identified a particular problem with the records, and no expert report identifies a factual uncertainty which will be relevant to an opinion the expert might give.

Consideration

1. What will be in issue at trial is which defendant, or both, owed the plaintiff a duty of care between 14 September 2010 and 21 September 2010. It appears that the plaintiff was sent for tests and took the results back to his general practitioner on 16 September 2010. The first defendant's clinical notes do not show that it took any action in relation to the MRI and bone scan results until 21 September 2010. The source of the information that the plaintiff suffered from unexplained fevers and sweats over the prior three days must have been the plaintiff himself. The plaintiff should be able to clarify whether he told Dr Doorenbosch of the unexplained fevers and sweats. It appears most likely Dr Doorenbosch wrote it on the requests for a bone scan. The clinical notes indicate that no action was taken between the outpatient's clinic between 14 and 21 September 2010.
2. In these circumstances, it is my view that there are no special circumstances warranting the administration of these interrogatories. Nor are they necessary or reasonably required for a fair trial. Interrogatories 5, 6 and 7 are disallowed.

Interrogatories 8 and 9

1. Interrogatories 8 and 9 read as follows: "8. Look at Annexure C [hospital micro notes dated 21 September 2010 on which day Dr Edger was the ordering provider]. Were the Gram negative rods grown only in the anaerobic blood culture?
2. Look at Annexure D (below) and in particular the words: Specify the basis on which the gram negative rods were considered to be a likely contaminant."

The plaintiff's submissions

1. The plaintiff submitted that the report of the bone scan dated 14 September 2010, which named Dr Edger as the person referring the patient, included findings of intense increased uptake of radio tracer at L5/S1 "with an appearance of erosive bony loss". It also noted the possibility of active discitis or focal infection, with a suggestion as to other possible investigations.
2. The report of the MRI of 14 September 2010 includes the statement, "reactive changes are seen in the sub endplate bone at L5/S1". Dr Stephen, orthopaedic surgeon, says that the changes of the MRI of 14 September 2010 and bone scan were signs of early osteomyelitis.
3. There is no record in the hospital records acknowledging either of these findings or taking further action in response to them prior to 21 September 2010.
4. These arise in relation to the proposed amendment to the statement of claim, and in particular the report of Dr Hudson of 14 March 2019 at p 5, where he notes the relevance of whether the fusobacterium grew only in the anaerobic blood culture bottle. He stated that this would be expected but cannot be determined from the documents. Interrogatory 8 addresses this missing information.
5. Further, at p 6 Dr Hudson notes that on 23 September 2010, the registrar assumed that the fusobacterium was merely contaminant, but two days later after the consultant obtained the history of dental problems and recognised that it was not merely a contaminant, the antibiotics were changed to the correct ones.
6. Interrogatory 9 is necessary because the records do not disclose any reasoning on the part of the registrar.

The first defendant's submissions

1. In his report dated 14 March 2019, Professor Hudson noted that the medical notes dated 23 September 2010 indicated the infectious diseases registrar, Dr Luu, felt the organism was a likely contaminant. Dr Luu reiterated this opinion the following day and advised continuation of Flucloxacillin and Gentamycin, neither of which has activity against gram negative anaerobes. On 25 September 2010, the in infectious diseases consultant, Dr Birch, recognised the significance of the isolate and obtained a recent history of dental problems. Dr Birch changed the antibiotics to cover anaerobic gram negative organisms, suspecting fusobacterium.
2. The first defendant agreed with the plaintiff that at p 5 of his report, Dr Hudson noted it was not possible to determine from the documents whether the organism grew only in the anaerobic blood culture bottle (as would be expected with fusobacterium species). Dr Hudson did not suggest that it was required to grow the organism in anything but an anaerobic blood culture bottle.
3. Dr Hudson noted that Dr Birch had the benefit of seeing the patient on 25 September 2010, and elicited the history of dental problems which fitted well with the diagnosis of fusobacterium vertebral osteomyelitis seeding from the dental infection. The first defendant argued that Dr Hudson does not criticise the actions of the registrar. The reasoning of the registrar is clear, unnecessary and occurred more than nine years ago.

Consideration

1. Interrogatory 8 asks whether the gram negative rods were grown only in the anaerobic blood culture. The answer in Annexure D appears to be "BC grew gram neg rods in 1 bottle". It is self-explanatory. It is my view that there are no special circumstances warranting the administration of this interrogatory. Nor is it necessary or reasonably required for a fair trial. Interrogatory 8 is disallowed.
2. So far as interrogatory 9 is concerned, while I agree it would be difficult for Dr Luu, the infectious disease registrar, to specifically remember any more about why he was of the opinion that the organism was a contaminant, his notes are silent. He is able to look at the clinical notes and he may be able to refer to his usual practice. The delay in prescribing suitable antibiotics is an important issue in dispute. Hence, it is my view that there are special circumstances warranting the administration of this interrogatory, and it is necessary or reasonably required for a fair trial. I allow interrogatory 9.

Costs

1. The appropriate order for costs is that they be reserved.

The Court orders that: (1) The plaintiff is granted leave to file and serve the amended statement of claim within 14 days. (2) The first defendant is to answer interrogatories 1, 2, 3, 4 and 9. (3) The first defendant is to file and serve a defence on or before 14 February 2020. (4) Costs are reserved. (5) The matter is listed for case management before Harrison AsJ at 10.00 am on 21 February 2020.

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: 04 December 2019