Supreme Court New South Wales

• Medium Neutral Citation: Brendan Hobson v Northern Sydney Local Health District [2014] NSWSC 375
• Hearing dates: 18 March 2014
• Decision date: 18 March 2014
• Jurisdiction: Civil
• Before: Rothman J

Decision

1. Prayers 1 and 2 of the plaintiff's Motion, notice of which was filed on 06 April 2013, is adjourned to a date to be fixed.

2. The plaintiff has leave, to the extent leave is necessary, to serve on each defendant properly framed subpoenae seeking documents in or to the same effect as the discovery categories by 4pm 1 April 2014.

3. The defendants served with subpoenae will answer same by 4pm 22 April 2014. Provided that if any requested document has already been produced, a note to that effect, describing the document, will suffice for production.

4. The plaintiff shall serve each defendant with a typed version of the hospital notes by 4pm 1 April 2014. By 4pm 15 April 2014, each defendant shall serve each other party with a notice admitting or disputing the accuracy of the document and, if disputing, its version of the matter in dispute.

5. The matter be listed for directions before me at 9am 5 May 2014 at which time the parties will advise as to the timetable for an amended Statement of Claim, defences, the possibility of interrogatories, discovery or any other direction.

6. Liberty to apply to the parties on two working days' notice to the Court and each other party.

• Catchwords: TORTS - negligence
• Legislation Cited: Civil Procedure Act 2005; Bail Act 1978
• Cases Cited: Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd Pty Ltd [2010] NSWSC 1498; Boscolo v Secretary, Department of Social Security [1999] 90 FCR 531; Haywood v Collaroy Services Beach Club [2005] NSWSC 1203; R v Michael John Brown [2013] NSWCCA 178; Priest v State of NSW [2006] NSWSC 12
• Category: Interlocutory applications
• Parties: Brendan Hobson (Plaintiff); Northern Sydney Local Health District (First Defendant); Dr R Gray (Second Defendant); Dr J Lagopoulos (Third Defendant); Dr C Sparks (Fourth Defendant); Dr A Cree (Fifth Defendant)
• Representation: Counsel: R. De Meyrick (Plaintiff); M. Scott (First Defendant); S.A Woods (Second Defendant); M Brown (Third Defendant); K. Burke (Fourth Defendant); R. Smith (Fifth Defendant); Solicitors: TD Kelly & Co (Plaintiff); Henry Davis York (First Defendant); Norton Rose Australia (Second Defendant); Meridian Lawyers (Third Defendant); Avant law Pty Ltd (Fourth Defendant); HWL Ebsworth Lawyers (Fifth Defendant)
• File Number(s): 2013/00080267

Judgment

1 The plaintiff seeks discovery and some other interlocutory orders. The orders are opposed. The plaintiff sues in medical negligence. The plaintiff suffers paraplegia following an operation on 17 November 2009. The substantive dispute arises from the plaintiff suffering paraplegia, during or immediately after a second spinal operation. The plaintiff suffered Noonan's Syndrome and presented with progressive scoliosis and with dyspnoea on exertion.

2 A thoracotomy (or two) was performed on 13 November 2009 together a discectomy and wedge osteotomy. The overall process was intended to be in two stages. After the first series of procedures, described above, the plaintiff was admitted to ICU. At first his post-operative condition was unremarkable.

3 A CT aortic angiogram was performed on 15 November. It showed a narrowing of the left main bronchus and compression of the aorta, pulmonary trunk and mediastinum between the sternum (anteriorly) and thoracic spine (posteriorly).

4 On 16 November, the plaintiff was suffering decreased oxygenation due, inter alia, to the left lung collapse. After review by the cardio-thoracic surgeon, early re-scheduling of the 2nd stage spinal surgery was suggested, in order to relieve compression.

5 On 17 November, the plaintiff, while still suffering a collapsed left lung, could, relevantly, move all 4 limbs. The second stage surgery was brought forward urgently and commenced. It was abandoned.

6 The conditions that were said to give rise to the need for urgency resolved without further surgical intervention. This second surgery was expected to be performed with the assistance of spinal cord function monitoring. Because of the lateness of the hour and the timing of the surgery, the relevant specialist was not available and no spinal cord monitor function traces were commenced or available.

7 After this second operation, the paraplegia was noted. It seems, albeit on a very preliminary view, to be caused by a spinal cord ischaemia arising from an episode of profound hypotension.

8 The plaintiff's medical reports, which, for reasons that may become obvious, are currently heavily qualified, point to different possible breaches of duty of care. One is the method used to anaesthetise the plaintiff. A second is the bringing forward, to the extent it was, the second stage surgery and, associated therewith and independently, conducting the surgery without spinal cord function monitoring.

9 There could be more than one breach that may be factually causative of the damage. On the other hand, once full documentation is available, if ever, the possible causes may become more limited and more certain.

10 Therein lies the difficulty. The first defendant has provided some documentation. The plaintiff suspects some is available but has not been produced. There is significant correspondence between the plaintiff and the first defendant.

11 The plaintiff seeks discovery in specified categories. The Statement of Claim is in a form that makes clear that it will be amended. The plaintiff asserts he is unable to do that until discovery.

12 Each of the first defendant and the fifth defendant has filed a defence. None of the other defendants has. The second to fourth defendants are different doctors performing work in the second operation. Each being a Visiting Medical Officer, the doctors may have more knowledge than the hospital.

13 The Court's power to order discovery is governed by UCPR r21.8, which provides that discovery is only available in personal injury matters where, for "special reasons", the Court so orders.

14 The term special reasons is used in various contexts. Care must be taken in utilising the meaning ascribed in one context in another. Nevertheless some guidance may be obtained.

15 In Boscolo v Secretary, Department of Social Security [1999] 90 FCR 531 French J at [18], said:

[18] The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is "...sufficiently understood not to require judicial gloss" - Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be "special" in relation to animals generally but "...when you are speaking of poets, he may need to be a Milton" - Holpitt v Varimu [1991] FCA 269; (1991) 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations - Jess v Scott (1986) 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules - Beadle (supra) at 228. Circumstances or reasons will not necessarily fall outside the designation of "special" because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise - Re Hutchins; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course - Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional - Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 108 ALR 322. In Beadle (supra) the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.

16 In relation to the power to grant bail under the Bail Act 1978 in R v Michael John Brown [2013] NSWCCA 178 the Court of Criminal Appeal (Rothman, Fullerton and Beech-Jones JJ) said:

"[22] The use of the term 'special and exceptional circumstances' would require that the circumstances be both special and exceptional. The use of the term 'exceptional circumstances' means that the circumstances need to be exceptional but not necessarily special. 'Special' is defined by the Macquarie Dictionary as 'relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional'. Thus the distinction between 'special and extraordinary' and 'extraordinary' may be more illusory than substantial.

[23] The Macquarie Dictionary defines the word 'exceptional' as:

1. forming an exception or unusual instance; unusual; extraordinary.

2. exceptionally good, as of a performance or product.

3. exceptionally skilled, talented or clever.'

[24] The Oxford English Dictionary defines the word 'exceptional' as:

'Of the nature of or forming an exception; out of the ordinary course; unusual, special.'

[25] Thus it would seem that if a Court or authorised officer is satisfied that one or more factors either singularly or combined produced a circumstance or situation out of the ordinary or unusual the mandatory requirement otherwise contained within s 9D(1) of the Act will be satisfied. 'Special' on the other hand, seems to imply a unique situation or one which pertains only to that individual."

17 In a similar context to this, namely, thee grant of interrogatories, I had reason to remark as to "special reasons" in the following terms:

[15] The issues, upon which questions are sought, like the earlier interrogatories:

a. Are concerned with subjects that, as between the parties, are largely or peculiarly within the knowledge of the defendant

b. Involve complex questions going to the relationship (legal and otherwise) between the defendant and third parties;

c. Would, for the plaintiff, otherwise be very difficult or impossible to prove or would be such that probative evidence on such issues would be difficult or impossible to obtain (Haywood v Collaroy Services Beach Club [2005] NSWSC 1203).

18 In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498, Garling J said of the power to order discovery:

"[50] Whilst it is clear that "special reasons", as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006, unreported) at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126] to [128] per Johnson J; Keating at [24]; Boscolo at [18] per French J (as his Honour then was).

[51] Typically, but not exclusively, what will take the matter "out of the ordinary" is:

(a) an inability to obtain the requisite factual material without the exercise of the discretion;

(b) that the applicant is in a position of some disability or disadvantage;

(c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.

[52] In addition, as with all questions of discovery, an issue of relevance must be satisfied, namely that the material sought to be discovered, and the answers to interrogatories will relate to a fact in issue. There are also other discretionary considerations.

19 The circumstance, as submitted by the first defendant, that most patients in medical negligence cases are not in possession of all of the facts does not assist the first defendant. First, medical negligence cases are a small proportion of all personal injury cases governed by the UCPR.

20 Secondly, as the Court of Criminal Appeal and French J pointed out in the foregoing extracts, to be special, the reasons do not need to be exceptional or unforeseeable. Most obviously, such reasons do not need to be unique. I refer particularly to the passage in Priest v State of NSW [2006] NSWSC 12, in which Johnson J addressed these issues. He said:

"[126] Plaintiff makes a common law claim for damages arising out of alleged bodily injury. Accordingly, Part 23r 2(1) (b) and rule 3 SCR do not apply to allow for discovery unless the Court, special reasons, otherwise orders: Part 23 r 5 SCR (See not Part 21.8 UCPR)

[127] The creation of the "special reasons" test in Part 23 r 5 SCR in 1996 strengthened what was always a prima facie prohibition upon discovery in claims for person injury: Haywood v Collaroy Services Beach Club Limited [2003] NSWSC 43 at paragraph 15. The rule represents an intention that discovery in personal injury cases will be rare, and will be ordered only where special reasons are made out: Haywood at paragraph 20.

[128] Not surprisingly, there is no definition of "special reasons" in the SCR (or UCPR). The Shorter Oxford Dictionary defines "special" as meaning "of such a kind as to exceed in some way that which is usual or common" and also "exceptional in character, quality or degree'. The application of Pt 23 r 5 SCR (Pt 21.8 UCPR) should be approached giving to "special reasons" the meaning that expression would ordinarily convey in common English usage, whilst having particular regard to the statutory setting in which the language is used: B v Gould (1993) 67 A Crim R 297 at 300. The core of the requirement for "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at 535-6 (paragraph 18); Binks v North Sydney Council [2001] NSWSC 27 at paragraphs 9-10.

21 It seems on the material before me that there are special reasons warranting the plaintiff having access to discovery at an appropriate time. Is this an appropriate time?

22 I think not. Most of the categories are described in terms that would easily convert to a request for documents on subpoena. I suspect that all that can be produced by the first defendant has been. Nevertheless a properly framed subpoena would provide greater confidence in that position.

23 Moreover, given the state of the pleadings, the fact that the second to fourth defendants have yet to file defences, and are the actors in the operation, I am not satisfied that much of the information described is not in the hands or minds of those defendants.

24 In all the circumstances, the Court makes the following orders and directions:

(1) Prayers 1 and 2 of the plaintiff's Motion, notice of which was filed on 06 April 2013, is adjourned to a date to be fixed;

(2) The plaintiff has leave, to the extent leave is necessary, to serve on each defendant properly framed subpoenae seeking documents in or to the same effect as the discovery categories by 4pm 1 April 2014.

(3) The defendants served with subpoenae will answer same by 4pm 22 April 2014. Provided that if any requested document has already been produced, a note to that effect, describing the document, will suffice for production.

(4) The plaintiff shall serve each defendant with a typed version of the hospital notes by 4pm 1 April 2014. By 4pm 15 April 2014, each defendant shall serve each other party with a notice admitting or disputing the accuracy of the document and, if disputing, its version of the matter in dispute.

(5) The matter be listed for directions before me at 9am 5 May 2014 at which time the parties will advise as to the timetable for an amended Statement of Claim, defences, the possibility of interrogatories, discovery or any other direction.

(6) Liberty to apply to the parties on two working days' notice to the Court and each other party.

Decision last updated: 08 April 2014