Just, cheap and quick? The evolution of interrogatories in personal injury matters

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By Louise Cantrill, Partner and Enoch Hui, Solicitor

While interrogatories in personal injury claims are meant to be limited to matters where “special circumstances” can be demonstrated, the courts have progressively become more lenient regarding when such special circumstances may arise, particularly in medical negligence cases. This article reviews relevant case law on this issue.

Background to Interrogatories

There are several elements which need to be satisfied before a court grants leave for the administration of interrogatories in medical negligence claims. The party seeking leave to administer interrogatories has to establish that that the order is necessary, but also that it is necessary at the time the request is made (UCPR 22.1(4)). The interrogatories must relate to a matter in issue (UCPR 22.2(a)). Uniquely for personal injury claims, the court must be satisfied that special reasons exist that justify making the order (UCPR 22.1(3)). This is best explained at [10] of Rice v Ghabrial [2016] NSWSC 313, in which the court commented that “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.

The requirement of ‘special reasons’ is confined solely to personal injury claims, and conventional wisdom would suggest this additional element would pose increased difficulty for the party seeking leave to administer interrogatories. However, NSW case law has demonstrated that the scope of the elements has progressively expanded, with the courts applying a much broader interpretation of the terms ‘necessary’ and ‘special reasons’ over recent times. This article will particularly focus on the NSW Supreme Court cases of Moggridge v The Benevolent Society and McMeekin v Prince of Wales Private Hospital to illustrate this trend.

Case Analysis

Moggridge v The Benevolent Society [2016] NSWSC 850 involved an elderly Plaintiff who fell whilst being transferred from his wheelchair to the recliner chair. It was alleged that the incident was caused by the failure to lock the wheels of the recliner chair, which led to the recliner chair slipping under the Plaintiff and causing substantial damage from the fall. It was further alleged that there was insufficient training to the staff on the use of rolling recliners, and a failure to provide support in the transfer of the Plaintiff.

The interlocutory decision at [11] focused on two aspects which may constitute the ‘special reasons’ required in order for interrogatories to be granted. The first aspect involved the determination of knowledge which was “peculiarly or appropriate in the knowledge of the defendant”. The second aspect, rather contentiously, witnessed the court relying on section 56(1) of the CPA to determine that the “other aspect of necessity and special reasons may be satisfied by an obvious facilitation or expedition of the proceedings”. In essence, the court diverged away from the conventional approach of scrutinising the ‘necessity’ and ‘relevancy’ of the subject interrogatories, and instead asserted that the facilitation or expedition of proceedings could constitute ‘special reasons’ for interrogatories to be administered.

This reliance on section 56(1) of the CPA was similarly applied in McMeekin v Prince of Wales Private Hospital [2019] NSWSC 190, which involved an alleged failure to diagnose and manage a pregnancy complication known as pre-eclampsia. The subject of the interrogatories was a conversation between the hospital (First Defendant) midwife and the specialist obstetrician (Second Defendant) which resulted in the Plaintiff being discharged, with the expert evidence concluding that the Plaintiff should not have been discharged. The midwife and the specialist provided different accounts of the fateful conversation.

The court ultimately granted the Plaintiff leave to administer interrogatories on similar grounds to the conclusion reached in Moggridge. The court held that “The conversation is peculiarly within the knowledge of the defendants”, and furthermore asserted that “so far as expense, delay and justice are concerned, the better approach is to administer interrogatories to the First Defendant”.

Implications

Interrogatories are ‘meant to’ be more restricted when it comes to personal injury claims due to the ‘special reasons’ required pursuant to UCPR 22.1(3). As noted in Rice v Ghabrial, the requirement of ‘special reasons’ is to ensure that interrogatories “are not the ordinary course” and to “restrict the circumstances” in which interrogatories will be ordered in personal injury claims. However, Moggridge and McMeekin demonstrate that the courts have progressively become more reliant on section 56(1) of the CPA to allow leave for interrogatories to be administered, and have considerably broadened the scope of terms such as ‘necessary’ and ‘special reasons’.

As a result, it is inevitable that plaintiff firms will more frequently administer interrogatories to take advantage of the court’s increasing leniency. However, the administration of interrogatories is a step available to all parties, not just plaintiffs. Further, they can be useful to clarify issues, confirm strengths and weaknesses in a case and narrow matters in dispute. While they can add to expense early in the litigation process, administration of interrogatories may ultimately contribute to a “just quick and cheap” resolution in the end.

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