Haywood v Collaroy Services Beach Club Ltd [2003] NSWSC 43

New South Wales Supreme Court

CITATION : Haywood v Collaroy Services Beach Club Ltd [2003] NSWSC 43 HEARING DATE(S) : 10 February 2003 JUDGMENT DATE : 14 February 2003

JUDGMENT OF : Simpson J DECISION : Appeal dismissed; Plaintiff to pay defendant's costs

CATCHWORDS : discovery in personal injury matters - Supreme Court Rules Part 23 - review of decision LEGISLATION CITED : Supreme Court Rules Haywood v Collaroy Services Beach Club [2002] NSWSC 991, unreported, 24 October 2002 CASES CITED : Haywood v Collaroy Services Beach Club Ltd, unreported, 22 July 2002 House v The King (1936) 55 CLR 499 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 PARTIES : Anthony Neville Haywood - Plaintiff Collaroy Services Beach Club Limited ACN 000 509 759 - Defendant FILE NUMBER(S) : SC 20252/01 COUNSEL : S Jacobs - Plaintiff PJ Gow - Defendant SOLICITORS : TD Kelly & Co - Plaintiff Hunt & Hunt - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE LIST

SIMPSON J

14 February 2003

20252/01 Anthony Neville HAYWOOD v COLLAROY SERVICES BEACH CLUB LTD

JUDGMENT 1 Her Honour: This is an appeal by the plaintiff from a decision of Master Malpass (Haywood v Collaroy Services Beach Club [2002] NSWSC 991, unreported, 24 October 2002) upholding an earlier decision of Registrar Howe (Haywood v Collaroy Services Beach Club Ltd, unreported, 22 July 2002) refusing to order that the defendant, the Collaroy Services Beach Club Limited, give discovery in proceedings commenced by the plaintiff. 2 By statement of claim filed on 2 April 2001 the plaintiff claims damages for personal injury sustained by him on 9 February 2001 whilst on premises occupied by the defendant. Put shortly, the plaintiff claims that the defendant conducted a licensed club at Collaroy Beach, that he was present on the premises on 9 February 2001, and that he fell over a railing on a stairway, to the floor below, and that as a consequence he suffered serious personal injury. He alleges that his injuries were caused by the negligence of the defendant. He particularises the negligence as lying in the design, construction and maintenance of the stairway and railing from and over which he fell. There is evidence that the plaintiff suffered a head injury and that he is amnesic in relation to the accident itself. 3 In order to prosecute his claim, on 8 June 2002, the plaintiff's solicitors, by notice of motion, sought an order that the defendant provide verified discovery of material identified in some detail in eight separate paragraphs in a schedule annexed to the notice of motion. Essentially, the material so identified was documentation concerning the design, construction, alteration or modification of the stairway and railing over which the plaintiff fell. Some of the paragraphs, however, could reasonably be construed as requiring discovery of documentation of the same kind but relating to any other stairways or railings in the club premises. By paragraph 6 of the schedule, discovery of documentation relating to "any accident sustained by persons using a stairway in [the club] between 1 July 1995 and 9 February 2001 inclusive" was sought. By paragraph 7 of the schedule, discovery of documentation of the same description, but relating to any such accident from 9 February 2001 "to date", was sought. By paragraph 8 documentation (including video or digital images) concerning the plaintiff's accident was sought. 4 Part 23 of the Supreme Court Rules is concerned with discovery and inspection of documents. The Part was substantially amended in 1996, the amended rules being applicable to proceedings commenced on or after 1 October 1996. By Rule 3 of Part 23 quite detailed provision is made for orders for discovery. However, by Rule 5, those provisions do not apply to proceedings on a common law claim for damages arising out of personal injury "unless the Court, for special reasons, otherwise orders". 5 The application made by the plaintiff in his June notice of motion was, in effect, for a finding that special reasons exist for requiring the defendant to provide discovery of the identified documents. 6 The notice of motion came on for hearing before Registrar Howe. It was supported by an affidavit sworn by a solicitor in the employ of the solicitors representing the plaintiff. Annexed to the affidavit was a report of a consulting architect who had examined the relevant stairway and who, in the report, expressed opinions concerning the negligence asserted against the defendant. 7 On 22 July 2002 Registrar Howe delivered written reason for his decision. He ordered the defendant to give verified discovery of the material identified in paragraph 8 (that is, concerning the plaintiff's fall) but otherwise declined to make orders in the plaintiff's favour. He held that the plaintiff had failed to demonstrate any "special reasons" for an order for discovery in relation to the other material which he sought. Further, he held that those paragraphs in the schedule that expanded the request in such a way as to include material relating to other stairways in the premises were expressed too widely. 8 Pursuant to SCR Part 61 Rule 5 the plaintiff sought review of the Registrar's decision. The review was conducted by Master Malpass who, on 24 October 2002, upheld the Registrar's decision. Two trains of thought appear to have led the Master to this result. Firstly, he said: "For present purposes it suffices to say that in the circumstances of this case, I am not satisfied that an otherwise order should be made." 9 He then held that, even if special reasons existed, the application should fail on discretionary grounds as being "clearly far too wide and well outside what was contemplated by" the amended rules concerning the grant of an order for discovery. He regarded the discovery sought as "oppressive and imposing an onerous burden upon the defendant" and having "the unmistakable characteristics of a fishing expedition". He found no error in the approach taken by the Registrar. 10 Recognising that, in part, the Registrar's decision depended upon the extent to which the discovery sought in the schedule to the notice of motion included discovery of documents relating potentially to stairways or railings other than those involved in the plaintiff's fall, the plaintiff's representatives presented to the Master an alternative schedule (identified as "Schedule A1") making clear that the documentation identified and sought was only that relating to the particular stairway the subject of the statement of claim. However, the Master declined to consider this document because of the nature of the review of the Registrar's decision in which he was engaged. 11 An appeal to a single judge of the court lies against any decision of a Master, except in cases where an appeal lies to the Court of Appeal pursuant to Rule 17 (SCR Part 60 Rule 10). Such an appeal is subject to the same principles as those governing an appeal from a judge to the Court of Appeal. This involves the proposition that, in general, the facts as found by the Master are binding, and any exercise of discretion may be reversed only on the principles stated in House v The King (1936) 55 CLR 499. 12 In support of the appeal, counsel for the plaintiff relied upon the evidence of the plaintiff's amnesia, the asserted absence of eye witnesses to the fall and the plaintiff's consequent inability to supply particulars of his fall unless he is placed in possession of information which may reasonably be supposed to be available to the defendant. In my opinion the plaintiff's amnesia, and the strong possibility that the defendant has material available to it concerning the plaintiff's fall, is sufficient to establish special reasons for making a limited order for discovery. However, this does not avail the plaintiff in this appeal, because that material is material of the kind identified in paragraph 8 of the schedule to the notice of motion, in respect of which an order in his favour was made. The factual circumstances upon which he now places reliance do not advance his claim in respect of the other documents he seeks. 13 Counsel for the plaintiff also relied upon the decision of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, asserting that that decision: "has the effect of making indispensable the discovery of the accident history of at least the stairway from which the plaintiff fell." 14 Makita was a case in which the Court of Appeal exhaustively analysed the role of expert witnesses. True it is, the court contrasted the expert evidence in that case with lay evidence to the effect that no accidents comparable with that there under consideration had occurred, and, plainly, saw this as relevant evidence in the competing positions of the parties. However, it does not, in my view, render "indispensable" the discovery of the accident history of the relevant stairway. 15 The difficulty that the plaintiff faces is that those charged with the rule-making function of this court have decided to effect a change in the availability of the discovery process, and have strengthened what was always a prima facie prohibition upon discovery in claims for personal injury. A plaintiff in such a case seeking discovery is now obliged to establish "special reasons" why such an order should be made. 16 In relation to the material discovery of which is sought in paragraphs 1 to 6 inclusive in Schedule A1, the argument put on behalf of the plaintiff involved a highly speculative exercise. It was to the effect that the defendant may have departed from the original architect's design and plans in such a way as to create a stairway more dangerous than that originally proposed. The plaintiff produced no evidence to support any such inference. I agree with Master Malpass that no basis has been established for ordering discovery of such documents. 17 The material sought in paragraphs 4 and 5 includes literature, correspondence or advice concerning the stairway. There is no basis for ordering discovery of that material. 18 The material sought in paragraphs 6 and 7 of Schedule A1 concerns, respectively, documentation concerning any accident sustained by persons using the stairway between 1 July 1995 and 9 February 2001 inclusive (para 6) and from 9 February 2001 (the date of the plaintiff's accident) "to date" (para 7). 19 Again, no evidence was adduced to establish the slightest reason for concluding that any such accident had occurred. If there were such evidence, I would be inclined to the view, that, it being reasonable to presume that such information would be in the possession of the defendant and not ordinarily available to the plaintiff, and, with respect to any such accident as pre-dated the plaintiff's accident, that constituted a special reason for ordering discovery limited to material of that kind. As I presently perceive the matter, it is likely that such evidence would be relevant to establishing the defendant's knowledge of any danger presented by the configuration of the stairway, and, axiomatically, only materials relating to accidents which pre-dated, not those that post-dated, the plaintiff's accident would be material. However, there being no reason to reach any conclusion that there is any such material, I am of the view that both the Registrar and the Master were correct in concluding that special reasons for ordering discovery had not been established. 20 Accordingly, I would dismiss the appeal. I would add that the reformulation in schedule A1 of the identification of the material sought does not ameliorate the difficulties the plaintiff faces. What he is confronted with is an intention on the part of those who make the rules that govern procedures in this court that discovery in personal injury cases will be rare, and ordered only where special reasons are made out. Such special reasons have not been made out. 21 The order I make is that the appeal is dismissed. The plaintiff is to pay the defendant's costs. **********