Sherry v Australasian Conference Association Ltd t/a Sydney Adventist Hospital & Others [2001] NSWSC 1153

New South Wales Supreme Court

CITATION : Sherry v Australasian Conference Association Ltd t/a Sydney Adventist Hospital & Others [2001] NSWSC 1153 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20437/00 HEARING DATE(S) : 12 December 2001 JUDGMENT DATE : 12 December 2001

Ann Elizabeth Sherry Australasion Conference Association Ltd t/a Sydney Adventist Hospital PARTIES : Dr David Marshman Dr Ross Wilson Dr Shaun Walsh JUDGMENT OF : Sperling J at 1

Mr D Jordan for the Plaintiff COUNSEL : Ms M Haire for the First Defendant Mr B Cran for the Second, Third & Fourth Defendants Gray & Perkins for the Plaintiff SOLICITORS : Ebsworth & Ebsworth Solicitors for the First Defendant Blake Dawson Waldron for the Second, Third & Fourth Defendants CATCHWORDS : Interrogatories - No question of principle DECISION : See paragraphs12 & 15 of the judgment

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List

Sperling J

Wednesday 12 December 2001

20437/00 Ann Elizabeth Sherry v Australasian Conference Association Limited - Trading As Sydney Adventist Hospital & Ors

Judgment

1 HIS HONOUR: The plaintiff sues the body responsible for the Sydney Adventist Hospital as first defendant, and relevantly a surgeon, Dr Marshman, in relation to a surgical procedure carried out on the deceased. 2 The procedure came within the broad category of being "off-pump" and within that category it came within the more particular description of a repair to the left anterior descending artery of the heart through a left thoracotomy procedure. 3 In the statement of claim (paragraph 58) negligence on the part of Dr Marshman is particularised as including "failing to provide services to the deceased in accordance with the standard expected in relation to the procedure carried out", and there are more particular allegations of acts and omissions. 4 In addition to the allegations of negligence in the Amended Statement of Claim, certain further particulars have been provided by correspondence, including that, if Dr Marshman did not believe that Sydney Adventist Hospital was able to provide the necessary standard of care, the procedure should have been performed elsewhere; and, secondly, that Dr Marshman should have ensured, before opting to carry out the procedure at the hospital or before actually doing so, that the hospital staff were adequately instructed in relation to the care of the deceased. 5 In answer to interrogatories previously administered, Dr Marshman has stated that his prior experience in relation to off-pump surgery amounted to seven cases, and in relation to the more particular type of surgery, two cases. 6 The plaintiff now moves the court for an order that Dr Marshman answer supplementary interrogatories specifying his prior training in relation to off-pump surgery and in relation to the more particular type of surgery, and also as to how many of the procedures mentioned in the prior answers were performed at the Sydney Adventist Hospital. 7 Subsequent to the previous interrogatories being administered, the plaintiff received a medical report by a Dr Boscoe in which, among other things, Dr Boscoe identified what, to him, indicated inexperience with the particular type of operation. I would take the tenor of his observations to apply equally to training. 8 Objection is taken to answering the proposed additional interrogatories on the ground that they are not relevant. In support of that position, it is pointed out that there is no specific allegation made on behalf of the plaintiff that Dr Marshman was so inexperienced and/or poorly trained that he should not have been carrying out this procedure, nor any allegation which would make it relevant to know the incidence of such surgery carried out by Dr Marshman at this particular hospital. 9 I have to disagree with those submissions. Relevance in relation to interrogatories is a very liberal test. A party may interrogate in order to obtain information that would be of assistance in the trial or which may be of such assistance, notwithstanding that the answers themselves might not be tenderable because they do not meet the more refined notion of relevance applicable to the admissibility of evidence. 10 In a broad way, the experience and training of a surgeon may tend to proof of allegations of negligence by making the likelihood of such negligence more or less feasible. Information as to the experience and training of a surgeon may therefore provide the opposite party with a basis upon which to explore at the trial ways in which any limitations in experience and/or training may have tended to bring about alleged acts or omissions. Those considerations are sufficient to support the plaintiff's claim for answer to the further interrogatories concerning Dr Marshman's training. 11 As to the extent to which relevant surgery was carried out by Dr Marshman at the particular hospital that, it seems to me, is relevant to the plaintiff's case as particularised, namely, that, if Dr Marshman did not believe the hospital was adequately set up for this particular kind of surgery, the procedure should have been carried out elsewhere or, I suppose, some more conventional kind of surgery should have been carried out at the particular hospital. Obviously enough, an answer to the question would not adduce all relevant matters pertaining to the allegation to which I have referre; but an answer would be relevant to the issue, in that it would provide information which bore upon the question, or at least provided material for use at the trial in relation to that question. 12 For these reasons I make orders pursuant to paragraphs 3 and 4 of the Minute of Orders, which I have initialled and placed with the papers earlier today. 13 The plaintiff seeks an order for costs of the application that the second defendant answer the supplementary interrogatories. The interrogatories do not require much in the way of time, effort or cost to answer. They are also, in my view, interrogatories which the plaintiff was in principle plainly entitled to have answered. 14 On behalf of the second defendant it is submitted that costs should not follow the event without qualification because the supplementary interrogatories could have been administered along with earlier interrogatories and because the present application comes late. There is something to be said for those arguments, but they do not seem to me to outweigh the plaintiffs prima facie entitlement to have the costs of a motion on which the plaintiff has succeeded. 15 Accordingly, I order the second defendant to pay the plaintiff's costs of the motion for supplementary interrogatories. -o0o-