Moggridge v The Benevolent Society [2016] NSWSC 850

Supreme Court New South Wales

Medium Neutral Citation: Moggridge v The Benevolent Society [2016] NSWSC 850 Hearing dates: 27 May 2016, 3 June 2016 Date of orders: 03 June 2016 Decision date: 03 June 2016 Jurisdiction: Common Law Before: Rothman J Decision: 1. Allow service of interrogatories 2, 4(c), 5 (if confined to oral), 6(a), 7, 9, 10(b), 10(c) and 11 2. Costs be costs in the cause Catchwords: PRACTICE & PROCEDURE – Interrogatories – personal injury claim – plaintiff with short term memory loss – meaning of necessary – special reasons disclosed. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Attorney General v Walker (1849) 154 ER 833 Pelechowski v The Registrar, Court of Appeal [1999] HCA19; (1999) 198 CLR 435 Category: Procedural and other rulings Parties: Paul Moggridge (Plaintiff/Applicant) The Benevolent Society (Defendant/Respondent) Representation: Counsel: Mr A J Bartley SC (Plaintiff/Applicant) Ms T Berberian (Defendant/Respondent)

Solicitors: Commins Hendriks Pty Ltd (Plaintiff/Applicant) Moray & Agnew (Defendant/Respondent) File Number(s): 2014/35310

Ex-Tempore Judgment 1. HIS HONOUR: The Court has before it an application for the issue of interrogatories. The present proceedings today are proceedings adjourned from last week given the view of the Court that the interrogatories that were then sought needed refinement. Those interrogatories have been refined. Like all documents, no doubt different people would draft questions in a different way. 2. The first aspect before the Court is the nature of the proceedings. These are proceedings in which there is a claim for damages arising out of the bodily injury to the plaintiff who, it is said, fell at a retirement village or nursing home while under the care of the defendant, which is the owner and/or occupier of the said institution, in circumstances where he was in the care of the defendant for respite care. It should be noted that ordinarily his care was provided by his then wife who needed, as one might, a break from that care. 3. The documents that are before the Court, and in particular those contained in exhibit A in the proceedings, which unusually are in the possession of the plaintiff, but, it seems, not counsel for the defendant, at least as at the time that these proceedings commenced, make clear that the plaintiff was suffering from depression and is on antidepressants. He has slight brain damage as a result of a stroke and the notes suggest he has short-term memory problems. The institution's notes also make clear that the plaintiff required assistance with bathing and showering and, most relevantly, assistance in the transfer in and out of bed or in and out of the recliner chair and that he needed mobility assistance and used a wheelchair. 4. The accident is said to have occurred when the plaintiff was transferred from the wheelchair to the recliner in which he slept or the other way around, I am not absolutely certain at this point in time. Nevertheless, it is said in part that the incident was caused by the failure to lock the wheels of the recliner chair, which then slipped under the plaintiff causing him to fall and cause substantial damage. The alternative is that there was insufficient training to the staff on the use of rolling recliners, which may be a subset of the earlier aspect. Another aspect is that there was a failure to adhere to and/or be aware of the care plan that had been implemented and there was a failure to provide support in the transfer of the plaintiff. 5. As earlier stated, the plaintiff has, on the notes provided by the plaintiff, but derived from the records of the defendant, short-term memory issues. The plaintiff in his witness statement describes to some extent, as best he can, the manner in which the accident occurred and the details of his care and what was occurring. Whether that knowledge is memory, conclusion or hearsay is not obvious. 6. The first issue with which I need to deal and about which there has been some debate, are the circumstances in which the Court will order interrogatories. These principles are no longer controversial. 7. Interrogatories are governed by the terms of rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW). Relevantly, in the case of personal injury proceedings, an order is not to be made unless the Court is satisfied that special reasons exist that justify the making of the order. Further, in every case, that is personal injury matters and otherwise, the Court is not to make such orders unless the Court is satisfied that the order is necessary at the time it is made. This rule qualifies what otherwise would be the general law in relation to the grant of interrogatories and, to some extent, clarifies and codifies that law. 8. The question of whether the matter is "necessary" is one that has been dealt with by the Court on previous occasions. The generally accepted view, after some debate between those implementing or assessing the need for interrogatories and the higher courts dealing with the principle, is that the term "necessary" is given the meaning that was given to it in Pelechowski v The Registrar, Court of Appeal [1999] HCA19; (1999) 198 CLR 435. The term "necessary" is used as part of a rule identifying a power to make orders, which are, "reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided." Pelechowski, of course, was a case involving the power of the District Court to issue certain orders as a basis of the punishment for contempt. 9. Nevertheless, the High Court dealt there with the grant of power to a court in terms using the word "necessary" and relied on the long held view and in particular that addressed by Lord Pollock in Attorney General v Walker (1849) 154 ER 833. 10. The position in terms of this case is that there are a number of items dealing with the details of what occurred which are alleged in the statement of claim and which are in some respects not admitted and in other respects denied. In modern terminology, the non-admission of an allegation in proceedings means that the person pleading is not in a position to admit or to deny the particular allegation. Once "not admitted" the fact or allegation is not then capable of being denied in evidence or admitted without an alteration or amendment to the pleading utilised. This is particularly so in light of the injunction issued by the legislature in the terms of s 56 of the Civil Procedure Act 2005 and the sections that then follow. That section provides that the overriding purpose of the Act and the rules of the Court is to facilitate the "just, quick and cheap resolution" of the real issues in the proceedings. This purpose is imposed as a duty on the Court; that is a duty to give effect to that overriding purpose and is imposed on parties to civil proceedings and legal practitioners representing parties in proceedings. 11. Because these are cases involving damages for personal injury, the Court, as earlier stated, is required, if it were otherwise minded to grant interrogatories, to satisfy itself that there are special reasons for so doing. This depends upon an analysis of that which is known to the plaintiff in this case and that which is peculiarly or appropriately in the knowledge of the defendant. It seems, however, given the injunction in s 56 of the Civil Procedure Act, that the other aspect of necessity and special reasons may be satisfied by an obvious facilitation or expedition of the proceedings that are otherwise before the Court. 12. I turn then to the interrogatories before dealing with the general issue. It seems to me that on the basis of the authorities as I understand them, that interrogatories are required to go to facts in issue rather than facilitate the discovery of evidence. What is said in terms of the opposition to the terms of the details of the interrogatories is that all of the information sought is information that is, either through the plaintiff or his wife, information within the knowledge of the plaintiff. 13. First, I deal with the interrogatory in question 13. Question 13 asks for an admission by way of conclusion as to that which caused or contributed to the fall of the plaintiff. It is in my view not a question of fact that is appropriate for interrogatories. It may be appropriate for a notice to admit facts. 14. It seems to me that question 1 is a fact already known to the plaintiff and ought not be the subject of interrogatories. Question 3 seeks only the identification of persons rather than the facts to which those persons could otherwise attest. Likewise, 4(a), 6(b) and (c), 8, 10(a) are in the same category as identifying witnesses rather than that which the defendant knew or ought to have known in relation to the matters in question. 15. I turn then to question 2. It is said by the defendant that question 2 is a matter within the knowledge of the plaintiff. I have already referred to the fact that the defendant's notes reveal that the plaintiff has short-term memory problems. 16. It seems on the face of that which I have seen, that whatever conversation occurred or information was provided, it was provided by the plaintiff's ex-wife. The assumption of the defendant is that the ex-wife is available to the plaintiff. My function is to determine whether the plaintiff, as distinct from his ex-wife, is in a position where there is a special reason to grant the interrogatory. In my view, there is a special reason to grant the interrogatory and it is a matter that is necessary in the sense already defined by me for the fair trial of these proceedings. 17. Apply the foregoing tests and in light of the foregoing discussion: I will allow interrogatory 2 and allow it to be issued; I will not allow interrogatory 3; I will not allow interrogatory 1; I will not allow interrogatory 4(a), to which I have already referred; I will allow interrogatory 4(c), but I will not allow interrogatory 4(b); 18. I will allow interrogatory 5, confined only to oral as distinct from written briefings; I will allow interrogatory 6(a); I will allow interrogatory 7; I will not allow interrogatory 8. 19. I will allow interrogatory 9; I will allow interrogatory 10(b) and (c); I will allow interrogatory 11 in its entirety; I will disallow interrogatory 12 and I have already disallowed interrogatory 13. 20. The reason I disallow interrogatory 12 is essentially that it is a hypothetical question in the sense that what measures were available to the defendant to remedy a fault, if there were a fault, is a matter that, frankly, is a matter of engineering and what is generally available in New South Wales to repair chairs. Assuming there is a fault it is aimed at that which is available for the kind of fault in question, rather than at the measures available on the premises or known to the business to repair the chair. 21. For the reasons given, albeit somewhat discursively or more discursively than I would in a reserved judgment, I allow the service of interrogatories but confined in the way I have just indicated.