Personal Injury – Legal & Tech Blog

21/12/2018

Novel duty of care

An interesting decision of the NSW Court of Appeal on the topic of recognition of a novel duty or care.

Ibrahimi v Commonwealth of Australia [2018] NSWCA 321

The Court of Appeal has dismissed an appeal from Mr Ibrahimi, representing a class of persons, against the Commonwealth of Australia concerning an alleged breach of duty of care owed to the plaintiffs during the shipwrecking of the boat on which they were travelling, SIEV 221, off the coast of Christmas Island in December 2010.

The Court (Payne JA, Meagher JA and Simpson AJA agreeing) (consistent with the primary finding at first instance) held that any alleged duty could not arise under the established categories of duty. Rather, any duty would have to arise as a novel duty of care, in which case the application of the salient features test is the correct approach.

On the facts of he case, there was no relevant reliance by the group members on the Commonwealth which would give rise to the relevant vulnerability, nor did the Commonwealth have control over the risk to the the group members in the relevant sense. In addition, there is no expectation placed on public authorities, of which the Commonwealth was one, of general reliance: that an entity will properly perform its public or private function.

It is important to note that this particular case dealt with potential harms flowing from omissions by a public authority, not from positive acts by such public authority. These aspects operate to mitigate against imposing a duty of care of a novel kind.

Finally, a $2 coin to the primary judge, on a difficult legal issue and emotionally charged issue, who was correct to reject case brought by Mr Ibrahimi.

06/12/2017

Time to tart-up one’s Pleadings?

Is this the new normal when pleading claims under the MACA/Civil Liability Act?

From Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151

A fundamental problem in the way the respondent (the plaintiff below) and the primary judge approached the issue of the existence and scope of the duty of care in this case is that each failed to address the requirements of s 5B of the Civil Liability Act which applied to the MACA in this case: s 3B(2) Civil Liability Act.
In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [11] it was emphasised by the plurality that it was of the “first importance” to identify the proper starting point, which, both in that appeal and here, was the Civil Liability Act, without which there was a “serious risk that the inquiries about duty, breach and causation will miscarry”.
As Meagher JA said in Garzo v Liverpool / Campbelltown Christian School. [2012] NSWCA 151 at [22]:

“To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

What was required in this case was that the primary judge should clearly identify the risk (or risks) of harm in respect of which the second defendant below was obliged to take precautions. It is against that risk of harm that the court would then have been in a position to determine the second defendant’s knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the second defendant’s response, or lack of response, to that risk: see RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]-[61] per Gummow J.
The need to identify the “risk of harm”, and to satisfy each of the requirements in s 5B, has been emphasised in numerous subsequent cases in this Court: Shoalhaven City Council v Pender [2013] NSWCA 210 at [55]-[72] and [83] ff; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [139]-[160]; and Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council(2015) 91 NSWLR 752; [2015] NSWCA 320 at [100]-[129].
The failure by the primary judge to identify the relevant risk of harm means grounds 9-11 of the notice of appeal should succeed. The failure to identify the risk (or risks of harm) left the court below in no position to determine the second appellant’s knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the second appellant’s response, or lack of response, to that risk or those risks. The steps taken or not taken by the second appellant relating to the speed and proximity of the vehicle to the respondent and his horse could not be tested in this case, as they must, against a properly identified risk of harm. It was of no assistance to reason that the second appellant failed in her duty by moving her car two or three metres from the kerb, as that was “insufficient”. It is relevant to observe “insufficient” when compared to what standard? The primary judge’s reasoning, by omitting a properly identified risk of harm against which to test the second appellant’s conduct, begs the question relevant question.
It was also no answer to the failure properly to identify the duty of care and the relevant risk of harm to point to evidence of the second appellant “seeking to exculpate herself” or evidence said to constitute an admission by the second appellant that to drive past a horse safely she should drop her speed to somewhere below the speed limit. At best that evidence could have gone to the question of the second appellant’s knowledge of a specified risk of harm. Having failed to identify any risk of harm, as his Honour was required to do, the primary judge fell into error.

19/02/2017

res ipsa loquitur?

No thanks I’ve had a glass already.

No really…what does it mean ? OK here’s a brief summary.

The scope and effect of the principle of res ipsa loquitur have been decisively settled by the High Court: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.

The principle is not a distinct, substantive rule of law, but an application of an inferential reasoning process, and the plaintiff bears the onus of proof of negligence even when the principle is applicable: Schellenberg [at 22].

A plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided the tribunal of fact concludes that:

there is an absence of explanation of the occurrence that caused the injury;
the occurrence was of such a kind that it does not ordinarily occur without negligence; and
the instrument or agency that caused the injury was under the control of the defendant: Schellenberg [at 25].

The principle only applies if it is within the common knowledge and experience of mankind that the occurrence is unlikely to occur without negligence on the part of the party sued. Where the occurrence is outside the experience of the lay person, and the evidence, expert or otherwise, does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable: Schellenberg [at 41], [at 43].

Lets use an example. Lets say an injury occurred to a person as a result of a collision between that person and another walking in opposite directions down a busy street. Is the collision of such a kind that does not ordinarily occur without negligence? We know that collisions such as this are a regular and common occurrence without negligence. This is thus a positive finding that the occurrence can occur without negligence. Hence, the principle wont apply. This highlights the need for evidence of the circumstances of such collision. It would be a slam dunk for the judge if the tortfeasor wasn’t called to give an account. Be careful of a Jones v Dunkel inference.

Further, it is not sufficient for the facts merely to speak of negligence: the evidence must point to the defendant’s negligence: Schellenberg [at 48].

19/10/2016

Occupiers duty of care

See McKenzie v Day (No 2) [2016] NSWDC 236 where Neilson DCJ provides a salient summary of an occupiers duty of care.

The most recent statement of the applicable law is contained in the judgment of McColl JA, with whom Macfarlane JA and Beech-Jones J concurred, in Schultz v McCormack [2015] NSWCA 330, where her Honour said this:

“73 As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on tiles on the porch or the stairs.

74 The scope of the duty occupiers owe entrants has been identified in numerous cases which reflect the latter premise, that is to say, the obligation of the entrant to take reasonable care for his or her own safety. Thus, it is emphasised that the occupier’s obligation is one of reasonable care, not to make the premises as safe as “reasonable care and skill on the part of anyone can make them”. It is not an insurer of entrants. What constitutes the exercise of reasonable care depends on the circumstances of each case.

75 Just as stairs are inherently but obviously dangerous and the risks of misjudging footing or tripping are ordinarily avoided by people taking reasonable care for their own safety,[68] so too are wet surfaces, or surfaces which may be wet by reason, among other matters, of rainfall. Thus, the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent.[69] Further, it does not follow from the fact that the porch was wet, that there was some precaution that the respondents did not take that a reasonable person in their position would have taken.”[Endnotes omitted]

However, it is worthwhile to consider some earlier cases. Perhaps the appropriate starting point is the decision of the Court of Appeal in Stannus v Graham (1994) Aust Tort Reports [81-293]. In that case, the plaintiff and her husband were renting premises owned by the defendant as a holiday flat. The plaintiff, who had fallen when she trod on a step on the premises, sued to recover damages for personal injuries. The trial judge found for the plaintiff because the top step had moved and because the defendant had failed to exercise reasonable care for the safety of the plaintiff and persons like her and that negligence had caused the fall. The trial judge found that a close inspection before the accident would have revealed movement in the top step, and the installation of a handrail would have been an easy matter and would have prevented the plaintiff’s fall. The appeal was allowed. The principal judgment was given by Handley JA, with whom Priestley and Meagher JJA concurred.
Commencing at 61, 564, his Honour said this:

“This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects.”

His Honour then referred to Aslanidis v Atsidakos and continued thus:

“Subsequently, in Short v Barrett (5 October 1990, unreported), Meagher JA held that householders do not act unreasonably in taking their house as they find it and assuming it to be perfectly safe unless and until they either know it is unsafe, ‘or else receive a warning that it may be unsafe.’ The other members of the Court, Clarke JA and myself, agreed. The High Court granted special leave to appeal, but the appeal did not proceed … Mr Black did not refer us to any authority to the contrary of these decisions and, in particular, did not refer us to any case which establishes that an occupier of residential property has a duty to inspect the premises for the purpose of discovering unsuspected defects.

Indeed, the decision in Watson v George (1953) 89 CLR 409 supports the view that no such duty existed in the present case. This decision predates Australian Safeway Stores v Zaluzna […] but was not referred to in that case and I see no reason why it should be treated as impliedly overruled.

In that case, a paying guest in the defendant’s boarding house died from carbon monoxide poisoning due to a defective gas bath heater. The plaintiff relied upon the duty owed to persons who enter premises for reward to the occupier. This duty is not less onerous than the duty established by Australian Safeway Stores v Zaluzna. The Court held that the contract contained an implied warranty that the premises are as safe for their intended purpose as reasonable care and skill on the part of anyone can make them, although the occupier is not responsible for defects which could not have been discovered by reasonable care or skill on the part of any person connected with the construction, operation, or maintenance of the premises.”

His Honour then went on to quote further from Watson v George. His Honour then went on to say this:

“A concrete step such as this is more commonplace and less dangerous than a defective gas bath heater. It was regularly walked on by both caretaker, tenants, and others. It was not even established that a close inspection by an expert the day before this accident would have revealed that it was likely to move in the near future. Again, in the words of Fullagar J inWatson v George at 425:

‘… no other negligence being established, the case resolved itself into a question of whether the defendant’s (caretaker) had been negligent in that he had not observed or remedied the defect …’

In my judgment, this Court cannot hold that the defendant by her caretaker had been negligent in failing to observe and remedy any defect in its step prior to the accident.

The remaining ground on which the liability of the defendant was supported was her failure to install a handrail next to the steps. Since, in my view, there was no negligence in failing to observe and remedy any defect in the step, it cannot, in the circumstances of this case, have been negligent for the defendant and her caretaker to fail to install a handrail. The steps were not otherwise dangerous and there were but four of them. Persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public avoid by taking care for their own safety. There is a step between kerb and gutter in city street and extensive steps outside public buildings in Sydney, such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House, and the Opera House.”

His Honour then went on at some length to point out that handrails were not to be found within reach of every person using a set of steps.

The important point to note, of course, is that persons using steps may misjudge their footing and slip and trip, but that is an ordinary, everyday risk. The “Joint Law Courts” subsequently became a defendant in a fall on steps. The decision is Wilkinson v Law Courts Ltd [2001] NSWCA 196. In that case, the plaintiff, on 30 May 1995, fell down the steps outside the Joint Law Courts Building in Sydney. He sustained a broken ankle. At the time, the plaintiff was 34 years of age and was able bodied with full sight. At the time, there was no handrail, edge-delineation strips, nor warning signs present on or near the steps. The plaintiff was unsuccessful in this Court and his appeal to the Court of Appeal was dismissed by Heydon JA (as he then was), with Meagher JA and Rolfe AJA concurring. At [32], Heydon JA said this:

“In my opinion, the trial judge’s reasoning is wholly convincing. Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact:

‘Persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public by taking care for their own safety:’

Stannus v Graham … There are many places in Sydney where steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James’ Church, and St Mary’s Cathedral.”

19/10/2016

Truth and Credibility of witnesses

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 is a medical negligence case which involved an alleged failure to diagnose a melanoma on the sole of the foot of the plaintiff.

In Coote Davies J had to weigh up the competing evidence of the Plaintiff and the deceased on the one hand and the four doctors on the other hand about the state or condition of a lesion – whether the lesion had appearance of plantar wart or melanoma.

His Honour made the following salient and considered observations.

In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431):

Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said:

[15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

[16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

[21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

[22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

In Campbell v Campbell [2015] NSWSC 784 Sackar J said:

[73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks:

…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

[74] I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]:

[140] Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions.

[141 In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted):

[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The “Palitana”):

“… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility…

[142] In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, and the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie’s Uniform Civil Procedure NSW at SCA s 75A.20).

[75] In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that “the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.” This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56].

[76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said:

[71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of theFair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] – [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.

[72] I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

[73] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].

[74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at[157].

[75] …

[76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 – 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember:

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

[77] Finally, I should mention an article by the former the Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

Ultimately, His Honour formed the view that if the melanoma was present it was not discernible by the exercise of reasonable care on the part of the doctor.

23/03/2016

Interrogatories in medical negligence

Principles set out in [6]-[13] Rice v Ghabrial [2016] NSWSC 313

The issue of interrogatories is governed by the rules and generally requires that the interrogatories be “necessary”. In the case of personal injury matters, the rules also require that there be “special reasons” for the administering of the interrogatories.

These matters were dealt with by the Court, as presently constituted in Chong v Nguyen [2005] NSWSC 588. In Chong, the Court said:

“12 There has been some debate about the requirement for the question to be ‘necessary’. Most often reference is made to Boyle v Downs [1979] 1 NSWLR 192 at 204-5. The Court (Cross J) there confirmed that the word ‘necessary’ was to be interpreted as meaning ‘necessary for a fair trial’.

His Honour said:

‘In considering the meaning of the word “necessary” in Part 23 Rule 14 – a rule relating to discovery and inspection similar to Rule 5 in Part 24 relating to interrogatories – Rath J in Percy v General Motors-Holden’s Pty Ltd [1975] 1 NSWLR 289 interpreted it as “necessary in the interests of a fair trial”. This definition is similar to the one I have suggested; for in Griebart v Morris [1920] 1 KB 659, Scrutton LJ interpreted “necessary for disposing fairly of the cause or matter” (under the English rules relating to interrogatories) as “necessary for the fair trial of the action”.’

13 The Court of Appeal has referred with authority to that passage in Schutt v Queenan [2000] NSWCA 341 at [11], [12], [13], [14] and [15]. His Honour the President said:

‘The answers which are sought are material in the sense that they may enable the claimant either to maintain her own case or to destroy the case put against her’ (see Griebart v Morris [1920] 1 KB 659 at 664).

14 While other views have been expressed at various levels of the judicial hierarchy, the overwhelming authoritative view is that the Court must be satisfied that the order is ‘necessary in the interests of a fair trial’.

15 It is, in this case, essential in light of the arguments pressed, to examine the meaning of the word ‘necessary’ in that context.

16 The word ‘necessary’ when used in relation to a requirement on the exercise of a power granted to a court should generally and does here mean ‘reasonably required or legally ancillary’ to the achievement of the goal, in this case, of a fair trial. I refer to the joint judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 which, while determining whether there was a valid basis for contempt proceedings, examined the power of the District Court to issue injunctive relief. They said:

‘The term “necessary” in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker (1849) 3 Ex 242, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Division 4 of Part 3 of the District Court Act. In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness” (State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 477 at 452).’ (my emphasis)”

Thus, in the context of UCPR r 22.1, the plaintiff must satisfy the Court that interrogatories are “reasonably required or legally ancillary” to the achievement of the goal, in this case, of a fair trial. In that sense, the word “necessary” in the relevant rule of the Court does not require that the order is “essential”.

Further, by operation of UCPR r 22.1(3), the Court is not to make such an order unless it is satisfied that “special reasons exist that justify the making of the order”.

A purposive construction of the above rule should be given. The purpose of requiring the Court to be satisfied of “special reasons” is to ensure that interrogatories in personal injury matters are not the ordinary course and to restrict the circumstances in which a Court will order interrogatories. As explained by Hall J in Keating v South East Sydney Illawarra Area Health Service (Supreme Court (NSW), Hall J, 7 July 2006, unrep at [24]-[25]), one relevant but not necessarily determinative criterion is the availability of the evidence otherwise.

The term “special” has been defined in a number of ways. The Macquarie Dictionary defines the term 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”. In a somewhat circular fashion the aforesaid dictionary defines “exceptional” as “special” and the Oxford English Dictionary defines the term “exceptional” as “of the nature of or forming an exception; out of the ordinary course; unusual, special”.

It would seem on the basis of the foregoing and given the context in which the Court is required to be satisfied of special reasons, the UCPR provide that the Court must be satisfied that the basis for the issue of the interrogatories is unusual or out of the ordinary in the context of the class of personal injury actions.

I approach the exercise of my discretion with that test in mind and in the context of the provisions of s 56 of the Civil Procedure Act 2005 and following, namely, the achievement of an outcome that facilitates the quick, cheap and just resolution of the real issues in dispute between the parties.