Stanislaw Samoty v Armin Rauber [1986] ACTSC 26 (24 April 1986)

SUPREME COURT OF THE ACT

STANISLAW SAMOTY v. ARMIN RAUBER
S.C. No. 1486 of 1983
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Practice and Procedure - interrogatories - particulars - purpose of discovery.

Australian Capital Territory Supreme Court Act 1933, s.8(4)

Motor Traffic Ordinance 1936 (A.C.T.), s.55(2)

O'Rourke v. Darbishire (1920) AC 581

HEARING

CANBERRA
24:4:1986

ORDER

The appeal be dismissed.

DECISION

This is an appeal from an order made by the Registrar dismissing an application by the defendant that the plaintiff inter alia provide to the defendant within 14 days an authority to enable the defendant to obtain certain medical reports specified in paragraph 2 of the plaintiff's Notice of Motion dated 18 February 1986. The appeal is brought pursuant to s.8(4) of the Australian Capital Territory Supreme Court Act 1933 and O.61, r.5 of the Rules.

2. So far as relevant to this appeal the orders sought in the Notice of Motion were:

1. That the plaintiff answer interrogatories

administered by the defendant by letter dated
15th February 1985.

2. That the plaintiff produce to the defendant within
14 days of the return date of this Notice of
Motion an authority to enable the defendant to
obtain the clinical notes of the Queanbeyan
Hospital including the admission notes and
discharge summaries relating to the plaintiff's
admission to that hospital following the accident
the subject of this claim together with all
medical reports including psychiatric reports of
his treatment there and further that the plaintiff
provide to the defendant in the same authority
within 14 days of the return date of this Notice
of Motion an authority to the defendant to enable
the defendant to obtain the clinical notes
relating to the plaintiff's admissions to the
Calvary Hospital together with discharge summaries
from that hospital including psychiatric reports
and medical reports of his treatment there
together with all clinical notes relating to the
plaintiff's admission and discharge to Calvary
Hospital.

3. That if the plaintiff fails to answer the said
interrogatories within 14 days or if the plaintiff
fails to provide the abovementioned authorities
within 14 days his claim be dismissed for want of
prosecution.

4. That the plaintiff pay the costs of and incidental
to making this application.

5. Such further or other order as to this Honourable
Court may seem just.

3. By writ of summons dated 12 August 1983 the plaintiff instituted proceedings for damages for personal injuries sustained in a motor vehicle accident. The injuries particularised in para.4 of the Statement of Claim included concussion resulting in brain damage with consequent impairment of intellect, concentration and memory together with physical clumsiness.

4. In order to assess the injuries allegedly sustained, the defendant arranged for the plaintiff to be examined by two medical practitioners. On 17 July 1985 the plaintiff was examined by a neurosurgeon, Dr Vanderfield. In his report of that examination, Dr Vanderfield stated that for a more definite opinion it would be necessary to examine certain medical reports relating to the plaintiff's admission and treatment at Queanbeyan Hospital.

5. On 7 August 1985 the plaintiff was examined by Dr Roberts, a clinical psychologist. In her report of that examination Dr Roberts said she regarded her assessment as incomplete. She reported that for a complete assessment it would be necessary to see certain other medical reports - in particular, the discharge summaries from the plaintiff's hospital admissions.

6. By letter dated 25 September 1985 the solicitors for the defendant requested the solicitors for the plaintiff to furnish the plaintiff's authority to make available to the defendant the clinical notes of the Queanbeyan Hospital including psychiatric reports of the plaintiff. The defendants requested the plaintiff's authority for similar reports from the Calvary Hospital.

7. That request went unanswered and the present application was subsequently made.

8. It was submitted by the defendant that in the circumstances there had been refusal or neglect without reasonable cause to allow a legally qualified medical practitioner to examine the injured person within the meaning of s.55(2) of the Motor Traffic Ordinance 1936 (A.C.T.). That section reads:

"(2) Where an action for damages is commenced in
respect of bodily injury to any person caused by, or
arising out of the use of, an insured motor vehicle,
and there has been a refusal or neglect, without
reasonable cause, to allow a legally qualified medical
practitioner, nominated by the owner, driver or
authorized insurer of the motor vehicle, to examine the
injured person for the purpose of ascertaining the
nature and extent of the bodily injury, the court may
make an order, on such terms as it thinks proper, that
all further proceedings in the action be stayed and
those proceedings shall be stayed accordingly."

9. In answer to the defendant's contention, counsel for the plaintiff submitted that the section had no application because the plaintiff had in fact attended the medical examinations arranged by the defendant on 17 July 1985 and 25 September 1985 respectively. The submission on behalf of the plaintiff is, in my view, correct. The fact that Dr Vanderfield and Dr Roberts reported that their respective examinations of the plaintiff were incomplete does not amount to a failure on behalf of the plaintiff to undergo an examination for the purpose of ascertaining the nature and extent of the bodily injury.

10. Next, it was submitted on behalf of the defendant that, as the plaintiff had failed to furnish all particulars with respect to injuries suffered by the plaintiff, the court should make a direction ordering full particulars pursuant to O.33, r.1(2)(b). In my view there has been no failure on behalf of the plaintiff to supply particulars. They are set out in para.4 of the Statement of Claim.

11. The next submission made on behalf of the defendant was that the court order the plaintiff to make discovery of all documents that are or have been in his possession which would include the authorities sought. There is no evidence that the authorities sought by the defendant are in existence or were in existence or that they have been or are in the possession of the plaintiff.

12. This submission on behalf of the defendant wholly misconceives the nature of discovery. It is no doubt true to say that the plaintiff has the power to obtain from the Queanbeyan and Calvary Hospitals the clinical notes sought by the defendant's examining doctors. However, the power of this court to order discovery pursuant to O.34, r.13 is confined to documents which are or have been in the possession of the other party. It does not enable a defendant to compel a plaintiff to furnish a document not then in existence so that the defendant can obtain medical reports direct from the hospital concerned.

13. In any event, it is well established that privilege attaches to documents relating solely to the party giving discovery. In O'Rourke v. Darbishire (1920) AC 581 at 606, Viscount Finlay held that:

"A party is entitled to get inspection of any documents
relating to his own case. He is not entitled to see
documents relating exclusively to his opponent's case
in order that he may prepare means of meeting it or try
to discover flaws in it."

14. Lastly, it was submitted on behalf of the defendant that because of the plaintiff's potentially large damages claim, it would be in the plaintiff's interests to provide the defendant with all the information the plaintiff has in order to provide the prospects of settlement of the action. This court is not equipped to make such a judgment. In any case the plaintiff's legal advisers have decided upon a different course.

15. The appeal is dismissed. I shall hear argument, if any, on the question of costs.