McCallum v Reynolds (No 2)

1. [1]

   HER HONOUR: This is the second application for interrogatories by the first and second defendants. The first motion seeking interrogatories was dismissed by Campbell J on 31 March 2016: McCallum v Reynolds [2016] NSWSC 366 (the first decision). The hearing is listed to commence on 13 November 2017 for 10 days.

2. [2]

   By notice of motion filed 9 November 2016, the first and second defendants seek firstly an order pursuant to r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that leave be granted to file and serve on the plaintiff interrogatories; and secondly, an order that the plaintiff provide verified answers to the interrogatories within 14 days after service of the interrogatories.

3. [3]

   The plaintiff is Katherine Christie McCallum. The first defendant is Phillip Reynolds. The second defendant is Anneliese Reinhold. The third defendant is DMB Realty Pty t/as Kingscliff Professionals Real Estate. The fourth defendant is Kingscliff Professionals Real Estate. The plaintiff relied upon the affidavit of her solicitor Candice Elizabeth Heisler dated 17 November 2016 and the affidavit of the first and second defendants’ solicitor Peter John Ford dated 4 February 2016. The first and second defendants relied upon the affidavit of their solicitor Peter John Ford dated 9 November 2016.

Background

1. [4]

   The plaintiff is a solicitor. By statement of claim filed 16 June 2015, the plaintiff pleads that she sustained catastrophic injuries and paraplegia, when she fell from the railing on the balcony at the back of the place where she was living on 16 June 2012. At the time of her accident she was renting the premises (the rental property) with her partner from the first and second defendants, who are the owners of the premises. The first and second defendants are also solicitors who currently reside in Dubai.

2. [5]

   At the time of the accident there was a standard residential lease form in existence between the first and second defendants and the plaintiff. The third and fourth defendants managed the property on behalf of the first and second defendants since the first and second defendants had purchased the property as an investment property.

3. [6]

   The plaintiff alleges that while she was sitting on the wooden railing on the balcony at the back of the premises, the balustrade moved in some way, causing her to fall to the ground below. As a result she sustained severe spinal injuries.

4. [7]

   The plaintiff alleges that the first and second defendants were negligent on the basis that the balustrade was alleged to be in a poor and unsafe condition. The issues in dispute at trial are in relation to the circumstances of her fall, the condition of the balustrade and whether anything about the condition of the railing caused her to fall. The defendants deny that the balustrade was in an unsafe condition and deny any negligence. The first and second defendants seek interrogatories. The plaintiff does not consent to answering them.

5. [8]

   On 12 February 2016, the plaintiff filed an evidentiary statement. She states that she had retired to bed at about 8.30 pm and was unable to sleep. After about thirty minutes, she got up, and went out onto the balcony as it was a nice evening. The plaintiff does not mention whether or not she drank alcohol on the evening of the accident.

The law in relation to interrogatories

1. [9]

   UCPR 22.1 reads:

Special reasons

1. [10]

   As the party seeking an order for interrogatories, the onus of establishing the existence of special reasons and necessity rests on the defendants: see O’Meara v Dr Arianayagam [2006] NSWSC 797 at [2].

2. [11]

   In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498, Garling J (at [49] - [51]) said of the requirement for special reasons:

3. [12]

   At the original hearing, counsel for the first and second defendants relied on two matters set out in para [51] of El Hayek. The two matters were firstly, an inability to obtain the requisite factual material without the exercise of the discretion; and secondly, where the complexity of the subject matter is such that without the exercise of the discretion real prejudice will result to the applicant.

4. [13]

   Senior counsel for the first and second defendants at this hearing submitted that this application for interrogatories satisfied all the matters set out in para [51] of El Hayek. Aside from the two matters raised before Campbell J, senior counsel argued that the first and second defendants are at some disability and some disadvantage as they cannot prove their case and that the answer to the interrogatories will achieve the just, quick and cheap resolution of the issue. Further, they drew my attention to the overriding purpose and submitted that with respect Campbell J did not really consider what might happen at trial if they had to do it a trial. (T11.9). With respect, I think his Honour did do so.

Necessity

1. [14]

   UCPR 22.1(4) requires that a Court must be satisfied that an order to answer interrogatories is “necessary at the time it is made”.

2. [15]

   The necessity requirement is to be approached as meaning “reasonably necessary for the disposing fairly of the cause or matter” or “necessary in the interests of a fair trial”: see Boyle v Downs [1979] 1 NSWLR 192 at 205 per Cross J.

3. [16]

   In Chong v Nguyen [2005] NSWSC 588, Rothman J explained (at [16]) the necessity requirement as follows:

The interrogatories

1. [17]

   The first and second defendants seek that the plaintiff answer the following interrogatories (“the interrogatories”):

2. [18]

   The first and second defendant’s brought an original application that the plaintiff answer these interrogatories. However, the earlier interrogatories included questions about medication but these interrogatories are no longer pressed. The original application was heard by Campbell J who refused leave to the first and second defendants to administer these interrogatories McCallum v Reynolds [2016] NSWSC 366.

3. [19]

   Following the accident the plaintiff was taken by ambulance to Tweed Heads hospital and then transferred to the Princess Alexandra hospital in Queensland. The Princess Alexandra hospital has produced the following documents on subpoena: resuscitation room record dated 16 June 2012; a document headed “admission – general” dated 17 June 2012; Princess Alexandra hospital progress notes dated 17 June 2012 (handwritten); a typed document headed “progress notes” dated 17 June 2012; ICU discharge summary dated 18 June 2012; and discharge summary document dated 20 September 2012.

4. [20]

   The ambulance records dated 16 June 2012 indicates that the plaintiff had been drinking that night. According to the admission notes from Princess Alexandra hospital, Katherine English recorded that the plaintiff had approximately six drinks.

5. [21]

   I accept these records do not reveal what the plaintiff’s blood alcohol concentration was at the time of the accident. Nor do the records reveal what type and the volume of alcohol the plaintiff consumed nor the period over which it was consumed.

6. [22]

   At the time when the first and second defendants’ application for leave to administer interrogatories was heard before Campbell J, the first and second defendants had not yet filed a defence, nor obtained a pharmacology report. At the hearing before Campbell J and before me the first and second defendant’s referred to the provisions of ss 48 and 50 of the Civil Liability Act 2002 (NSW). In the original application the significance of these provisions were outlined. The first and second defendants foreshadowed that they intended to plead them in their defence.

7. [23]

   Sections 48 and 50 of the Civil Liability Act read:

8. [24]

   As set out in s 50(3) of the Civil Liability Act 2002 (NSW), if the Court is satisfied that the injury was likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the Court is satisfied that the person's intoxication did not contribute in any way to the injury. If the elements of s 50 are established, it operates either as an absolute defence to the plaintiff’s claim or gives rise to a finding of contributory negligence of at least 25 per cent.

9. [25]

   Senior counsel for the first and second defendant submitted that their current position in this application is different from the first. The first difference is that the first and second defendants have filed a defence pleading s 50 of the Civil Liability Act. However, the first and second defendants concede this is not the reason why Campbell J refused the first application.

10. [26]

    The second difference purported by the defendant is what is said in the letter of Dr Helen Dauncy, a pharmacologist, dated 8 November 2016. (“the Dauncy letter”). As set out in s 50(2), a Court is not to award damages in respect of liability unless satisfied that the injury was likely to have occurred even if the person had not been intoxicated. As set out in s 50(1), the section applies when it is established that the person who is injured was at the time of the act or omission that caused the injury intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. The threshold for the application of s 50 is thus establishing that the plaintiff was intoxicated to the extent that her capacity to exercise reasonable care and skill was impaired.

11. [27]

    The first and second defendants bear the onus of establishing intoxication and the extent of the intoxication and its causal significance. The defence under s 50 requires the defendants to establish as a threshold point that the plaintiff was intoxicated.

Further interlocutory order

1. [28]

   However, where a party seeks a further interlocutory order after a contested hearing, McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 said:

2. [29]

   Dr Dauncy says that she requires specific information about the plaintiff’s intake of alcohol on the evening of the fall in order to provide a report of any value at this time. (Aff Peter Ford, 9/11/2016 Annexure “R”). Her letter reads:

3. [30]

   It is my view that the Dauncy report could have been reasonably obtained and put before Campbell J on the original application.

4. [31]

   In the original application for interrogatories which was before Campbell J, the first and second defendants’ solicitor deposed the reasons why they needed to administer interrogatories. They are as follows:

5. [32]

   These are same reasons that the first and second defendants have ventilated before me.

The original decision

1. [33]

   In McCallum v Reynolds [2016] NSWSC 366, Campbell J relevantly stated:

2. [34]

   Campbell J concluded that he was not of the view that obtaining precise responses for the purpose of submitting them to a toxicologist satisfied the statutory test of necessity in this case. Nor was his Honour satisfied that it demonstrated that special reasons exist for the making of an order in this personal injury case on the basis that an experienced toxicologist would be able to say, for instance, that the consumption of six full strength drinks over different, specified periods of time, could be expected to effect upon the plaintiff’s gross motor skills, her balance and other aspects of her metabolic functioning in specified ways. Nothing about those questions makes it necessary that interrogatories be administered at this time in advance of a defence nor does it constitute special reasons.

3. [35]

   The Dauncy report does not add anything that would amount to a material change of circumstances. Campbell J had already alluded to the problems that Dr Dauncy speaks of in her letter. There is no material change of circumstances since the original application and it is also my view that the Dauncy report could have been reasonably obtained and put before Campbell J. I agree with Campbell J that the request for interrogatories are not necessary both at the time the original application was made or at this time. Nor has the first and second defendants demonstrated that special circumstances exist.

4. [36]

   It is my view that the plaintiff is entitled to give evidence and be cross examined at trial in the usual way. Dr Dauncy is in a position to prepare her report based on what is contained in the hospital and ambulance records as outlined by Campbell J. Her opinion may change depending on what evidence the plaintiff gives in relation to her alcohol consumption. It is also my view that the interests of justice dictate that the first and second defendants should not be granted leave to administer “the interrogatories” to the plaintiff. The first and second defendants’ notice of motion filed 9 November 2016 is dismissed.

5. [37]

   At the conclusion of the hearing, senior counsel for the first and second defendants made an application, without notice, that in the event that I am against their application, then they would need an order from the Court that they not be required to serve their toxicologist’s evidence until after the plaintiff had given evidence. (T25.16-19).

6. [38]

   I directed the plaintiff’s solicitor to email my associate and the solicitor for the first and second defendants advising as to whether or not the plaintiff will agree to an order that the first and second defendants can serve a pharmacology report after the plaintiff has been cross examined on the alcohol issue as soon as possible. The plaintiff’s response (letter from Ms Heisler, Quinn & Scattini Lawyers dated 16/2/2017) is that it is premature for the making of a decision and the answer is “no” at this time and reiterated some of her earlier submissions. Hence, it is my view that this issue is best left for determination by the trial judge.

7. [39]

   Costs usually follow the event. The first and second defendants are to pay the plaintiff on an ordinary basis as agreed or assessed.