District Court New South Wales Medium Neutral Citation: Scott v Hunter New England Local Health District [2018] NSWDC 361 Hearing dates: 14 June 2018 Date of orders: 14 June 2018 Decision date: 14 June 2018 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Plaintiff's notice of motion filed 31 January 2018 be dismissed. (2) First defendant's costs be costs in the proceedings. (3) Direct that any expert report by the plaintiff be served by 23 July 2018. (4) Stand the matter over for directions on Monday, 30 July 2018 before the presiding judge. Catchwords: CIVIL PROCEDURE — interrogatories — objection – necessity – special reasons Legislation Cited: Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, 22.1, r 42.1, r 42.7 Cases Cited: El Hayek v Vasic; QBE Insurance (Aust) Ltd v Westfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498 Priest v State of New South Wales [2006] NSWSC 12 Category: Procedural and other rulings Parties: Cooper Scott – plaintiff Hunter New England Local Health District – first defendant Dr Mark Adamski – second defendant Representation: Counsel: Mr S Kettle – first defendant Solicitors: Bale Boshev Lawyers - plaintiff Curwoods Legal Services Pty Ltd – first defendant File Number(s): 2015/72823 Publication restriction: None Judgment 1. Cooper Scott suffered injuries subsequent to treatment by his general practitioner, Dr Mark Adamski, at John Hunter Hospital. Mr Scott attributes his injuries to a delay in the provision of treatment. He applies for orders compelling the first defendant, the Hunter New England Local Health District ("the Health District"), to answer interrogatories. 2. Uniform Civil Procedure Rule 22.1 empowers a court to order any party to answer interrogatories. Such an order ought not to be made unless it is necessary under r 22.1(4), and in a claim for bodily injury such as this, unless the Court is satisfied that special reasons exist under r 22.1(3). The existence of these two requirements, necessity and special reasons, is challenged by the Health District. 3. Special reasons are matters out of the ordinary, but need not be extremely unusual, uncommon or exceptional. [1] In Priest v State of New South Wales, [2] special reasons included a difficulty in the plaintiff obtaining direct witness evidence, the defendant having exclusive knowledge of the relevant facts about which without interrogatories the plaintiff would be unable to obtain evidence, and that interrogatories would narrow the scope of the dispute. 4. The necessity for interrogatories is informed by the matters in issue. 5. So far as the Health District is concerned, Mr Scott alleges in the statement of claim that the Health District did not "adequately react" to a communication by Dr Adamski, [3] that it did not then recommend and ensure urgent assessment and examination "in emergency" (presumably a reference to the emergency section of the Hospital), [4] that it did not from the first complaint treat Mr Scott for discitis, [5] that it did not "react adequately" to the results of a bone scan or an "abnormal CRP result", [6] that it did not commence urgent treatment for "discitis and/or vertebral osteomyelitis", [7] and that it did not commence "appropriate antimicrobial treatment" on admission to the Hospital. [8] In short, the Health District and Dr Adamski allegedly did not properly diagnose and treat Mr Scott with the urgency that his case warranted and that, as a result, it is alleged he suffered exacerbated discitis and vertebral osteomyelitis. 6. In this context, the interrogatories can be considered. They are: "1. Did Dr Jakody and/or Dr Edger of the First Defendant receive a phone call from the Second Defendant concerning the Plaintiff on 7 September 2010, and if so for each such call: a. Specify the approximate time of the call, and with whom the Second Defendant spoke; b. Specify 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/Dr Edger; ii. what questions were asked by Dr Jakody/Dr Edger seeking further information; iii. what the Second Defendant said in response; iv. what advice was provided to the Second Defendant by Dr Jakody/Dr Edger in relation to management of the Plaintiff 2. During the conversation referred to in 1, did Dr Jakody/Dr Edger give thought to possible diagnoses and if so, what potential diagnoses did he consider? 3. During any conversation between the First Defendant and the Second Defendant on 7 September did the First Defendant say that the Plaintiff should be seen 'quickly' and if so: a. Did the Second Defendant ask why the Plaintiff should be seen 'quickly' and if so, what was the substance of the response provided? b. What did the First Defendant determine to be the appropriate timing for a 'quick' consultation for the Plaintiff and if so what was the basis for this determination? 4. Look at annexure A. On what date was of this report received by the First Defendant? 5. Did the First Defendant provide any clinical history verbally to Newcastle Nuclear Medicine in requesting this report and if so set out in as much detail as possible the history provided and by whom and to whom it was provided. 6. Did the First Defendant provide the Clinical History information set out in Annexure A? 7. 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: a. When was the first time the medical officer read it? b. Did he/she consider the words History included unexplained fevers and sweats over the past 3 days. Erosive bony loss contained in the clinical history and if so, what view, if any, did he/she form as to the likely cause of any fevers and sweats? c. Did he/she consider the report of the scan and if so what view, if any, did he/she view as to the likely cause of the 'destructive process' referred to d. What action(s) did the First Defendant take, if any, following its reading of the report?" (Errors in original). 1. There are a number of problems with the form of the interrogatories. 2. First, the use of the abbreviated alternatives "and/or" and "Dr Jakody/Dr Edger" tend to obscure the real question and render more difficult a brief, relevant answer. 3. Secondly, in interrogatory 2, the questions are directed to Dr Jakody's or Dr Edger's thoughts, which are likely outside the knowledge of the Health District, or are directed to the Health District's knowledge of Dr Jakody's or Dr Edger's thoughts, which is not relevant. 4. Thirdly, interrogatory 3 refers to a conversation between the Health District - which has no capacity itself to conduct a conversation - and Dr Adamski. The same interrogatory repeats the request for details of the content of a possible conversation already requested in interrogatory 1. 5. In interrogatory 5, the interrogatory uses the term "verbally", but appears intended to exclude the written form. Again, it refers to the Health District speaking and not to some agent or employee who had that capacity. 6. Interrogatory 6 asks about the origin of the contents of correspondence created by a third party, a matter which the Health District ordinarily could not answer and which cannot be asked. 7. Interrogatory 7 appears to embrace a wide range of people engaged by the Health District. It asks about their thoughts and it assumes in sub-interrogatory (d), without asking, that the Health District read the report. 8. There are other grammatical errors in the interrogatories. 9. These difficulties of form alone would cause me to refrain from requiring the Health District to answer the interrogatories as presently framed. But there is a bigger problem. The substance of the request, when properly formulated, is to ask doctors and other "medical officer[s]" about their recollection of words in conversations, their thoughts and their ideas that occurred at a specific time some eight years ago. In my view, this is oppressive, unhelpful, unnecessary, and inconsistent with the "overriding purpose" of the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 stated in s 56 of the Act. 10. The interrogatories are unnecessary because the contemporaneous record is detailed, containing records of diagnoses, meetings, prescriptions, referrals, reports and treatment at the time. These records include both the record of Dr Adamski and a referral letter from him to Dr Edger speaking of Mr Scott and his condition at the time of the conversation to which interrogatories 1 to 3 are directed. The records include the report, Annexure A, which bears relevant dates, and there are other records which indicate the date asked about in interrogatory 4. Other records also provide information on the matters in interrogatories 5 to 7. 11. For these reasons, I do not think it is necessary that the recollection of the content of conversations between doctors some eight years ago or their thoughts at the time be the subject of interrogatories. Recollections may be given in evidence, but Mr Scott currently has contemporaneous records of those interactions which ordinarily might be preferred as reliable evidence. [9] 12. Nor do I think the circumstances of the present case are special or out of the ordinary. 13. Mr Scott has not identified a particular problem with the records, less still a problem which is of real importance to his case. No expert report identifies a factual uncertainty which will be relevant to an opinion the expert might give. 14. Further, evidence of interactions between the various doctors is not exclusively within the first defendant's possession given the available medical records. Also, the proposed interrogatories and their answers may tend to widen rather than narrow the matters in dispute. 15. For these reasons, I do not propose to order the interrogatories be answered. This decision is 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. The notice of motion should be dismissed. 16. As to costs, this motion might illustrate a contest between the force of r 42.1 and r 42.7 in respect of interlocutory costs, as to whether interlocutory costs should be part of the proceedings, or awarded to the successful party of the interlocutory motion. The first defendant seeks its costs, and the plaintiff has not said anything in response. However, I think that, in this case, the tension between rr 42.1 and 42.7 might best be dealt with by the order that the first defendant's costs be costs in the proceedings. 17. Accordingly, the orders of the Court are: 1. Plaintiff's notice of motion filed 31 January 2018 be dismissed. 2. First defendant's costs be costs in the proceedings. 3. Direct that any expert report by the plaintiff be served by 23 July 2018. 4. Stand the matter over for directions on Monday, 30 July 2018 before the presiding judge. ********** Endnotes 1. El Hayek v Vasic; QBE Insurance (Aust) Ltd v Westfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498. 2. [2006] NSWSC 12. 3. Statement of claim, [17]. 4. Statement of claim, [17], [19], [20]. 5. Statement of claim, [18]. 6. Statement of claim, [21], [22]. 7. Statement of claim, [21], [22]. 8. Statement of claim, [23]. 9. See Watson v Foxman (1995) 49 NSWLR 315 at 318-319. 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: 03 December 2018