Supreme Court New South Wales Medium Neutral Citation: Arnold v Matsias [2017] NSWSC 173 Hearing dates: 24 February 2017 Date of orders: 06 March 2017 Decision date: 06 March 2017 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The defendant's notice of motion filed 1 August 2016 is dismissed. (2) Costs of the hearings before Hall J on 31 October 2016 and Harrison AsJ on 17 February 2017 are costs in the cause. Catchwords: INTERROGATORIES – negligence – breach – duty of care – notice of motion Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 49.19 Cases Cited: Bendixen v Coleman [1943] HCA 40; (1943) 68 CLR 401 Texts Cited: Bailliere's Australian Nurses' Dictionary (1991 ed) Concise Oxford Dictionary (10th ed) Oxford University Press Macquarie Dictionary (6th ed) Category: Procedural and other rulings Parties: Simon Arnold (Plaintiff) Chris Matsias (Defendant) Representation: Counsel: P D'Arcy-King (Plaintiff) J Lonergan SC (Defendant) Solicitors: Slater & Gordon Lawyers (Plaintiff) Meridian Lawyers (Defendant) File Number(s): 2015/244084 Publication restriction: Nil Judgment 1. HER HONOUR: By notice of motion filed 1 August 2016, the defendant seeks an order pursuant to Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) that the judgment of Registrar Bradford dated 5 July 2016 be set aside. Background 1. By statement of claim filed 20 August 2015, the plaintiff Simon Arnold alleges that on 2 September 2013 he consulted the defendant Chris Matsias, a registered physiotherapist. The plaintiff complained of left neck and arm pain with weakness and was unable to turn his head/neck without painful retraction and left arm symptoms. 2. On 2, 5 and 10 September 2013, the defendant treated the plaintiff with cervical traction being performed on 10 September 2013 by way of a mechanical traction unit. The plaintiff alleges that he was not provided with any advice or warnings regarding potential adverse signs and or symptoms that may arise from the treatment on 10 September 2013. 3. On 17 September 2013, the plaintiff alleges that he awoke with a number of symptoms and was conveyed to hospital, where various tests and investigations were carried out. On 18 September 2013, following an MRI brain scan and MRA scan, diagnosis was made of cerebellar infarct with or without left vertebral artery dissection. (S/C [32]). The plaintiff alleges that he suffered significant injuries as a consequence of the left vertebral artery dissection and cerebellar stroke. 4. The plaintiff alleges that the defendant had a duty of care to exercise reasonable skill and care in providing physiotherapy management, treatment and advice and that the defendant needed to provide precautions and advice prior to, during and subsequent to the treatment. (S/C [46] to [48]). The plaintiff alleges that the defendant failed to take reasonable precautions against the risk of harm. (S/C [49]). 5. By defence filed 7 December 2015, the defendant states that between March 1995 and May 2012, he carried on practice at Crestwood Physiotherapy & Sports Injury Clinic at Baulkham Hills. Since October 2012, he practiced at Mend Physio in Kingsgrove. 6. The defendant denies negligence and that he breached his duty of care to the plaintiff and does not admit that the plaintiff suffered the injuries and disabilities alleged. The decision of the Registrar 1. In relation to interrogatories, the Registrar in his decision dated 5 July 2016 stated at [69] to [71]: "As to interrogatories 11-12, 15-16, 19-20, the defendant raises that 11, 15 and 19 are directed to the credit issue and should not be allowed. In my view these interrogatories go to matters within the knowledge of the defendant and are meant to ascertain information which the plaintiff does not know but which is in the knowledge peculiarly of the defendant. It is clearly a matter in respect of which special reasons exist and it is necessary in the interest of a fair trial that they be answered. The defendant referred to warnings in the notes, there is however nothing more than a reference to "warnings" there is no other information at all as to what was said or if the note was the sole record of extent of the risk assessment and warning. In addition if the assessment was not written then the plaintiff seeks information and it is not unknown for a court to order that the substance or effect of a conversation be provided, if the threshold issues are established. These matters are relevant and deal with core issues and the defendant is the one who has the knowledge concerning the same. It is clear from the pleadings that there are differences stated as to what occurred at the consultations and the defendant is the one who has the knowledge of these matters and they are solely in his possession and the plaintiff is unable to ascertain the same without the answers being provided." 1. The Registrar ordered the defendant to answer interrogatories 1-8, 10, 11, 12(c), (d), (e) and (f), 14, 15, 16(e), (f), (g) and (h), 18, 19 and 20(e), (g) and (h). 2. Since the Registrar made his decision in relation to interrogatories, the review of the Registrar's decision was listed before Hall J on 31 October 2016. His Honour did not determine the review but relevantly ordered: "1. Answers to interrogatories 1-8 to be provided by Monday 14 November 2016. 2. Plaintiff's verified witness statement as to liability to be provided by 5.00pm Monday 21 November 2016. … 4. Today's Notice of Motion to be stood over until Wednesday 14 December 2016 before the Registrar. … 6. Question of costs for today reserved." 1. As a result of the parties' exchange of the witness statement on liability, some of the interrogatories were no longer pressed by the plaintiff and some were answered by the defendant. It is my view that due to this additional direction, each party altered their stance on some of the interrogatories so what is left is a review of a few interrogatories in light of changed circumstances. 2. On 13 February 2017 when the matter was listed before me, the parties had come to an agreement regarding some of the interrogatories. I made an order that the defendant was to file and serve verified answers to the interrogatories on or before 5.00 pm on Friday 17 February 2017 and stood the matter of for hearing before me on 24 February 2017. 3. On 17 February 2017, the defendant filed a second statement in answer to interrogatories. The only interrogatories that now still remain in dispute are 4 to 7, 12(d)(i) and (ii), 16(f)(i) and (ii) and 20(f)(i) and (ii). The disputed answers to interrogatories 1. The plaintiff submitted that the answers to all of these interrogatories are not sufficient for various reasons that are detailed below. Interrogatories 4 and 6 1. Interrogatories 4 and 6 are related. The question is the same but in relation to a different medical condition. Interrogatory 4 concerns vertebra-basilar insufficiency and 6 relates to vertebral artery compromise. 2. Interrogatory 4 reads: "As at 2 September 2013, what investigations were you aware of that would be conducted and/or performed on a patient to ascertain whether there was evidence of vertebra-basilar insufficiency? Answer: I was aware that the investigations are CT Scan (computerised tomography), MRI Scan (magnetic resonance imaging) or MVA Scan (magnetic resonance angiography). Had a patient presented with evidence of vertebra-basilar insufficiency I would cease the consultation and recommend urgent medical evaluation and radiological investigation and to avoid symptom provoking movements." 1. Interrogatory 6 reads: "As at 2 September 2013, what investigations were you aware of that would be conduct and/or performed on a patient to ascertain whether there was evidence of vertebral artery compromise? Answer: I was aware that the investigations are CT Scan (computerised tomography), MRI Scan (magnetic resonance imaging) or MVA Scan (magnetic resonance angiography). Had a patient presented with evidence of vertebral artery compromise I would cease all therapy and recommend urgent medical attention and radiological investigation and to avoid symptom provoking movements." 1. The dispute between the parties here is what the word "investigation" actually means. The defendant submitted that the word "investigation" means an independent investigation that does not include physical examination. The plaintiff submitted that the defendant's interpretation of the word "investigation" is too narrow. 2. Counsel for the plaintiff referred to Bendixen v Coleman [1943] HCA 40; (1943) 68 CLR 401 where Latham CJ stated at [1]: …"The court takes judicial notice of the meaning or ordinary words, and evidence is not admissible to expound their meaning, though the court, in addition to using its own knowledge, may refer to standard authors and authoritative dictionaries in order to obtain assistance in interpretation. …" (citation omitted). 1. Turning to The Concise Oxford Dictionary (10th ed) Oxford University Press, "investigate" means: "carry out a systematic or formal inquiry into (an incident or allegation) so as to establish the truth – carry out research into (a subject) – make a search or systematic inquiry." 1. In the Macquarie Dictionary (6th ed) "investigate" means: "verb (investigated, investigating) v.t. 1. To search or inquire into; search or examine into the particulars of; examine in detail. 2. To examine in order to obtain the true facts: to investigate a murder, -v.i. 3. To make inquiry, examination, or investigation. [L investigates, past participle, tracked, traced out]. "investigation" means: "… 1. The act or process of investigating. 2. A searching inquiry in order to ascertain facts; a detailed or careful examination. .." 1. Investigation is not defined in Bailliere's Australian Nurses' Dictionary (1991 ed). 2. The defendant referred to a letter from the defendant's lawyers Meridan Lawyers to the plaintiff's lawyers Slater & Gordon Lawyers, in relation to interrogatory 4 that reads as follows: "Interrogatory Four Your contention that a response ought relate to "physical examinations would be conducted and/or performed" does not conform to the interrogatory posed. We maintain interrogatory 4 has been answered." 1. The same statement is made in relation to interrogatory 6. It is my view that a medical "investigation" does not mean a physical examination. A physical examination is something different. If the plaintiff had wanted to ask whether the defendant had carried out a physical examination he should have directed an interrogatory to that issue. Interrogatories 4 and 6 have been answered. Interrogatories 5 and 7 1. Similarly, interrogatories 5 and 7 concern warnings given in relation to the two different medical conditions, vertebral-basilar insufficiency and vertebral artery compromise. 2. Interrogatory 5 reads: "As at 2 September 2013 what warnings were you aware of it would be provided to a patient who had or was suspected to have evidence of vertebra-basilar insufficiency? Answer: If a patient had or was suspected to have evidence of vertebra-basilar insufficiency I would cease the consultation immediately. I would advise the patient to seek immediate medical attention and to avoid all symptom provoking movements." 1. Interrogatory 7 reads: "As at 2 September 2013 what warnings were you aware of would be provided to a patient who had or was suspected to have evidence of vertebral artery compromise? Answer: I would cease all therapy and recommend urgent medical attention and radiological investigation and to avoid all symptom provoking movements." 1. The same answer was given to both conditions. The plaintiff referred to the definition of warning in The Concise Oxford Dictionary that reads: "Warning – n. 1 a statement or event that warns or serves as a cautionary example. 2 cautionary advice. 3 advance notice." 1. The plaintiff complains that the answer is incomplete because the meaning of what is meant by "avoid symptom provoking movements" is unclear. 2. The defendant submitted that expert evidence may show that the warning was insufficient and if it is, it goes to particulars of negligence. 3. I agree that what is meant by "avoid symptom provoking movements" is unclear but that is what the defendant says he would recommend. Whether this warning is deficient will be determined by the expert physiotherapist's evidence. Interrogatories 5 and 7 have been properly answered. Interrogatories 12(d)(i) and (ii), 16(f)(i) and (ii) and 20(f)(i) and (ii) 1. The interrogatories are directed to a risk assessment, The answers to 12(d)(i) and (ii), 16(f)(i) and (ii) and 20(f)(i) and (ii) ask the same question but each one is directed at one of the three consultations, being on 2 September 2013, 5 September 2013 and 10 September 2013. 2. Interrogatories 11, 15 and 19 all ask a similarly worded question: "Please look at page 1 and 2 of the document annexed and marked "B" (Physiotherapy Assessment Document dated … September hereto. Was the information recorded on page 1 and 2 of that document written by the defendant? (clinical notes) Answer: Yes." 1. Interrogatory 12 asks that if the answer to question 11 is yes then please provide details of the following: "d) If that risk assessment you conducted on the plaintiff was written, partly written and partly oral then please provide: i) Copies of the written material relating to the risk assessment conducted and/or information you provided to the plaintiff; ii) If the risk assessment and/or information you provided to the plaintiff were partly or totally oral then please provide the ipsissima verba of that conversation. If you are unable to provide the same ipsissima verba of that conversation then provided the substance thereof." 1. Interrogatory 16(f)(i) and (ii) read: "(f) If the assessment you conducted on the plaintiff [on 5 September 2013] was written, partly written and partly oral then please provide: (i) Copies of the written material relating to the risk assessment conducted and/or information you provided to the plaintiff; (ii) If the risk assessment and/or information you provided to the plaintiff were partly or totally oral then please provide the ipsissima verba of that conversation. If you are unable to provide the ipsissima verba of that conversation then provide the substance thereof." 1. Interrogatory 20 asks please provide details of the following: "e. Prior to commencing physiotherapy treatment did you conduct a risk assessment on the plaintiff? f. If that risk assessment you conducted on the plaintiff was written, partly written, and partly oral then please provide: i. Copies of the written material relating to the risk assessment conducted and/or information you provided to the plaintiff; ii. If the risk assessment and/or information you provided to the plaintiff were partly or totally oral then please provide the ipsissima verba of that conversation. If you are unable to provide the ipsissima verba of that conversation then provide us the substance thereof." 1. The defendant has admitted that he wrote the clinical notes for each of the three consultations. He objects to answering these interrogatories on the basis that they are vexatious and oppressive in that they assume a fact or facts not admitted. 2. The written clinical notes do not record any details of a risk assessment being conducted nor do they mention any oral conversation the defendant had with the plaintiff in relation to a risk assessment. Senior counsel for the defendant submitted that while the defendant may have conducted a mental risk assessment on each occasion, the interrogatories are directed to written and/or oral risk assessments being undertaken 3. It is my view that these interrogatories call for an answer if the risk assessments were conducted partly on a written or partly oral basis. If they were not, then no answer is called for. 4. The result is that the defendant is not required to provide further answers to interrogatories 4 to 7. Nor is the defendant required to answer interrogatories 12(d)(i) and (ii), 16(f)(i) and (ii) and 20(f)(i) and (ii). 5. The orders made by the Registrar in relation to interrogatories 3 to 7, 12(d)(i) and (ii), 16 (f)(i) and (ii) and 20(f)(i) and (ii)are set aside. Costs 1. The plaintiff seeks that the defendant pay the plaintiff's costs before Hall J when the review was listed on the basis that he had already been successful before the Registrar. Since the defendant has answered interrogatories that he sought to review, the plaintiff seeks that costs before me be costs in the cause. The defendant seeks that the costs before Hall J be costs in the cause on the basis that after witness statements were exchanged, some interrogatories that had been ordered to be answered were no longer necessary. The defendant seeks that the plaintiff pay his costs before me on the basis that the plaintiff was unsuccessful pursing answers to interrogatories before me. 2. The hearing before Hall J was fruitful for both parties because as a result of the exchange of witness statements on liability, some of the interrogatories were answered and others not pressed. It is my view that there has been a compromise on behalf of both parties which took place after the Registrar's decision in changed circumstances. The appropriate order for costs before both Hall J and myself should be costs in the cause. The Court orders that: (1) The defendant's notice of motion filed 1 August 2016 is dismissed. (2) Costs of the hearings before Hall J on 31 October 2016 and Harrison AsJ on 17 February 2017 are costs in the cause. ********** 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: 16 April 2018