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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2003-091-143
BETWEEN AMANDA PICKARD
First Plaintiff
AND TROY TAYLOR
Second Plaintiff
AND CHAS AMBROSE
First Defendant
AND
RINNAI NEW ZEALAND LIMITED
Second Defendant
Hearing:
7 March 2008
Appearances: N. Sainsbury & N. Levy - Plaintiffs
I. Hunt - First Defendant
G. Simms - Second
Defendant
Judgment: 14 April 2008 at 4.00 pm
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
This judgment
was delivered by Associate Judge Gendall on 14 April 2008 at
4.00 p.m. pursuant to r 540(4) of the High Court Rules
1985.
Solicitors: McElroys, Solicitors, PO Box 835, Auckland
Ord Lillico, Solicitors, PO Box 10909, Wellington
PICKARD AND ANOR V AMBROSE AND ANOR HC WN CIV 2003-091-143 14 April 2008
Introduction
[1] The defendants apply for orders
that the first and second plaintiffs:
a) provide further particulars of their statement of claim;
b) provide
further particular discovery;
c) submit to medical examination by specified medical practitioners.
[2] The plaintiffs
essentially:
a) Argue that they have complied with their discovery obligations in the
sense that they do not
have any more relevant documents to disclose.
Notwithstanding this the plaintiffs do not take objection to the particular
discovery orders sought by the defendants. Orders to this effect
therefore will follow.
b)
Object to providing many of the further particulars of the statement of
claim which are sought by the plaintiffs.
c) Consent to some aspects of the orders sought relating to medical
examinations by certain medical practitioners
but, in particular, they
oppose being examined by a Professor Gorman.
[3] In addition, the plaintiffs ask the Court
to put certain conditions on any
medical examinations which might be ordered. These conditions relate to the
duration
of such examinations and issues over requests for support persons, the costs
of attending the examinations and questions over whether
the medical practitioners
might be able to contact and interview third parties.
Background facts
[4] The plaintiffs' statement
of claim seeks damages against the defendants on
the basis of carbon monoxide poisoning they say they have suffered as a result of
the
negligence of the defendants. The causes of action are pleaded under the Consumer
Guarantees Act 1993, breach of contract and
tort law.
[5] The plaintiffs are a mother and her teenage son. They say that the first
defendant, a plumber and gas-fitter, installed
a gas heater in their house in 1998
using a flue not approved for use with that heater. They contend that the heater, flue
and adapter
used were unsafe. Moreover, they claim that the first defendant failed to
recognise and fix the problem on subsequent visits to
their house after a strong gas
odour became apparent.
[6] The second defendant was an importer, distributor and agent for the
manufacturer of the heater. The plaintiffs say that in August 1998 the first defendant
sought and received advice from the second
defendant as to how the heater could be
attached to the flue and that the first defendant obtained from the second defendant
an adapter
to connect the heater to the flue. They say that this adapter was a flue part
from a different model of heater. They claim that the
second defendant failed to
supply a safe heater and flue and failed to ensure that their installation advice to the
first defendant was correct.
[7] The plaintiffs contend that
as a result of the first and second defendants'
actions, they have been subjected to chronic carbon monoxide poisoning from their
exposure to the leaks from 1998 to June 2001. They say that this has caused them to
suffer symptoms such as heart palpitations, chest
pains, hair loss, severe headaches,
drowsiness, memory loss and an inability to concentrate.
[8] Proceedings were commenced in
April 2003 in the District Court, and then in
the High Court in February 2006. Over the years there have been numerous amended
statements
of claim and a number of Court decisions, including an application to
strike out the proceedings which reached the Court of Appeal
(see Rinnai New
Zealand Limited v Pickard & Ors CA13/06 10 August 2006).
[9] There was also a hearing as to the first defendant's
conduct before the
Plumbers Drainlayers and Gasfitters Board in 2004. For the purposes of this hearing,
the defendants commissioned
Professor Gorman to provide an expert opinion on the
nature of the plaintiffs' stated health problems. Professor Gorman is the Head
of the
School of Medicine at the University of Auckland and it is said he is a leading expert
on carbon monoxide poisoning. His report,
dated 24 June 2004, indicated that the
likelihood of the plainitffs' symptoms being caused by carbon monoxide was
somewhere between
"unlikely" and "possible".
[10] In the present application, the defendants' seek further particulars and
discovery orders, and
a further order that the plaintiffs' submit to specified medical
examinations.
Discovery
[11] As I indicated at the outset,
although the plaintiffs contend they have
complied with their general discovery obligations in this proceeding, before me Mr.
Sainsbury
for the plaintiffs confirmed that they had no objection to certain discovery
orders being made.
[12] That said, effectively by consent
the following directions are now made:
a) The defendants are to have a period of 14 days to advise the plaintiffs if
the documents contained in the plaintiffs' fourth supplementary list of
documents provided to the defendants
on 5 March 2008 are considered to
be satisfactory.
b) Within a further 7 days of that date, the plaintiffs
are to reply to the
defendants with respect to any issues which may be raised.
c) Leave is then reserved
for the defendants within a further 14 days of that
date to file and serve any further application they may wish to
regarding
discovery issues.
d) If any such application is made, then an urgent directions telephone
conference is to be convened by the Registrar to timetable progress in
dealing with the application.
Further
Particulars
[13] Further particulars are sought by the defendants pursuant to R. 185 of the
High Court Rules. These are set out
in the second defendant's notice to the plaintiffs
dated 29 November 2007, as follows:
"Second amended statement of claim
dated 25 May 2007
Paragraph 19
1. When and how the first defendant sought and received advice from the
second defendant as to the means by which the heater could be attached
to the flue;
2. Who gave the advice
on behalf of the second defendant, and when and
how it was provided;
Paragraph 20
3. What the advice was;
4. How
the advice differed from the specifications in the manufacturer's
instructions;
Paragraph 22
5. When and how the first defendant
obtained an adaptor from the second
defendant;
6. Who provided the adapter on behalf of the second defendant, and when
and how it was provided;
Paragraph 23
7. Which flue part from which different model of heater the adaptor was;
Paragraph 39.5
8. What the ongoing neuropsychological effects are;
Paragraph 49.4 (also referred to by paragraphs 100, 109, 114, 121)
9. Why and how future employment has been lost;
Paragraph 49.6 (also referred to by paragraphs 100, 109, 114, 121)
10. What the ongoing health benefits are which resulted in the
inability to
work full time, and how they have resulted in that inability;
Notice of particulars dated 2 October 2007
Paragraph
1
11. In respect of past income (in the period from when the first plaintiff's
causes of action allegedly arose against the
second defendant, up to the
valuation date):
a) How much income the first plaintiff has received. When, how, and
from where she obtained that income;
b) How much income the first plaintiff would have received had her
ability to
work not been impaired. When, how and from where she
would have obtained that income;
c) Why, how and to what degree,
the first plaintiff's ability to work has
been impaired;
12. In respect of future income:
a) How much income the first
plaintiff will receive. When, how, and
from where she will obtain that income;
b) How much income the first plaintiff
would have received had her
ability to work not been impaired. When, how and from where she
would have obtained that
income;
c) How the net present value of the lost future income has been
calculated;
d) Why, how and to what degree,
the first plaintiff's ability to work has
been impaired;
Paragraph 2
13. In respect of past income (in the period from when
the second plaintiff's
causes of action allegedly arose against the second defendant, up to the
valuation date):
a) How
much income the second plaintiff has received. When, how, and
from where he obtained that income;
b) How much income
the second plaintiff would have received had his
ability to work not been impaired. When, how and from where he
would
have obtained that income;
c) Why, how and to what degree, the second plaintiff's ability to work
has been impaired;
14. In respect of future income:
a) How much income the second plaintiff will receive. When, how, and
from where he will
obtain that income;
b) How much income the second plaintiff would have received had his
ability to work not been impaired.
When, how and from where he
would have obtained that income;
c) How the net present value of the lost future income has
been
calculated;
d) Why, how and to what degree, the second plaintiff's ability to work
has been impaired."
[14] The defendants apply for further particulars under r 185 of the High Court
Rules. Rule 185 states:
"185 Notice
requiring further particulars or more explicit
pleading
(1) A party may, by notice, require any other party--
(a) To give such further particulars as may be necessary to
give fair notice of--
(i) The cause of action or ground of defence; or
(ii) The particulars required by these rules; or
(b) To file and serve a more explicit statement of claim or of
defence or counterclaim.
(2) A notice under subclause (1) shall indicate as clearly as may
be the points on which the pleading in respect
of which it has
been served is considered defective.
(3) If the party on whom a notice under subclause
(1) is served
neglects or refuses to comply with the notice within 7 days
after service thereof, the
Court may, if it considers that the
pleading objected to is defective or does not give particulars
reasonably required by the notice, order a more explicit
pleading to be filed and served.
(4) Notwithstanding
that no notice has been given under this rule,
the Court may of its own motion order a more explicit
pleading to be filed and served."
[15] The requirements
for particulars in pleadings are set out in the High Court
Rules. Relevant to the defendants' present application are the following
rules:
"Rule 108 Statement of claim to show nature of claim, etc
The statement of claim-- ...
(b)
Shall give such particulars of time, place, amounts, names of
persons, nature and dates of instruments, and other
circumstances as may suffice to inform the Court and the party
or parties against whom relief is
sought of the plaintiff's cause
of action; ...
Rule 116 Amount of money claim
If the statement
of claim seeks the recovery of a sum of money, the
amount shall be stated as precisely as the nature of the case admits.
Rule 117 Special damages
If the plaintiff seeks to recover special damages, the statement of
claim
shall show the nature and particulars thereof
[16] On this, McGechan on Procedure states (at HR185.01):
""the primary purpose
of pleadings is...to define the issues and thereby to
inform the parties in advance of the case they have to meet and so
enable
them to take steps to deal with it" (quoting Farrell v Secretary of State
[1980] 1 All ER 166, 173 (HL)).
[17] Similarly, in Thomson v Westpac Banking Corporation (No 2) (1986) 2
PRNZ 505 Eichelbaum J commented that:
"the Court must concern itself to see that the pleadings are in order; their
function
is to clarify and define the issues for the Court, as well as to inform
the opposite party".
[18] The Court of Appeal
canvassed the relevant principles as to particulars in
Price Waterhouse v Fortex Group Ltd CA179/98 30 November 1998. In that case,
the appellant sought further particulars with respect to the respondent's claim for
damages in contract and tort for allegedly negligent
audits. These included
particulars of the specific loss caused and how that loss was caused by the alleged
breach(es) of
the defendant. The Court of Appeal took some time to emphasise the
importance of the pleadings there (at p17):
"It has become
fashionable in some quarters to regard the pleadings as
being of little importance, there was an echo of that approach in
the
implicit suggestion floated in this case that exchange of briefs of
evidence before trial might be seen as curing
any lack of particularity
in the pleadings. Any such view is misguided. Pleadings which are
properly drawn and
particularised are, in a case of any complexity, if
not all cases, an essential road map for the Court and the parties.
They are the documents against which the briefs of evidence are or
should be prepared. They are the documents which
establish
parameters of the case, not the briefs of evidence.
...What we are saying is that both the Court and opposite
parties are
entitled to be advised of the essential basis of a claim or defence, and
all necessary ingredients of
it, so that subsequent processes and the
trial itself can be conducted against recognisable boundaries. Neither
the
Court nor opposite parties should be placed in the position of
having to deal with a proposition of whose substance adequate
notice
has not been given in the pleadings."
[19] The Court (at 19) put the scope of the requirement in this way:
"The pleader and court simply ask `in the circumstances of this claim,
is that statement sufficiently detailed to state
a clear issue and inform
the opposite party of the case to be met?'. This is not, under modern
practice, simply some
minimum which a Defendant needs so as to be
able to plead. It is intended to supply an outline of the case advanced,
sufficient to enable a reasonable degree of pre-trial briefing and
preparation. Discovery and interrogatories are only
an adjunct, not a
substitute for pleading."
[20] The Court concluded (at 19) that determining the appropriate content
of a
pleading will require "in the end a common-sense and balanced judgment based on
experience as to how cases are prepared and
trials work".
[21] In Re Securitibank Ltd (No 25) HC AK A355/81 10 October 1983, Barker J.
summarised the general purpose and
content of particulars in the following way:
"The function of particulars is to carry into operation the over-riding
principle that the litigation between the parties, and particularly the
trial, should be conducted fairly, openly, without
surprises and,
incidentally, to reduce cost. Their function has been stated inter alia:
(a) To inform the other party
of the nature of the case he has to meet,
as distinguished from the mode in which the case will be proved;
(b) To prevent the other party from being taken by surprise;
(c) To enable the other party to know with what evidence he
ought to
be prepared; and
(d) To limit and define the issues.
A certain amount of detail is necessary
in order to ensure clearness.
What particulars need to be stated depends on the facts of each
case...
Another
important principle is that where misconduct is imputed
against any party, those allegations against him must be stated with
especial particularity and care..."
[22] With
respect to negligence specifically, particulars are to include the
circumstances said to give rise to a duty of care and the alleged
negligent acts or
omissions of a defendant which are said to have caused or contributed to the event at
issue: McGechan on Procedure
at HR108.09.
[23] In the present case, the defendants seek further particulars in two broad
categories:
a) The first
is regarding the factual events which have led to the plaintiffs'
claim; and
b) The second is with respect
to the special damages for loss of earnings
that are sought by the plaintiffs.
[24] In terms of the factual events
particulars, the defendants suggest that the
plaintiffs are required to make basic statements of the allegations against the
defendants
relating to:
a) the installation of the gas heater by the first defendant and the advice that
the first
defendant might have received from the second defendant (as
itemised in [1] to [7] of the second defendant's notice);
b) the neuropsychological effects allegedly suffered by the plaintiffs
(itemised in [8]); and
c)
the first plaintiff's lost employment and alleged inability to work fulltime
in the future (items [9] and [10]).
[25] In response, the plaintiffs' say that these particulars are not known (especially
items at [2], [6] and [7]), are matters
of evidence (especially items at [4] and [8] to
[10]), or that the defendants already have access to them as they have been explained
in evidence at the Plumbers Drainlayers and Gasfitters Board Hearing in 2004
(especially items at [1], [3] and [5]).
[26] The defendants
reply:
a) If they are unknown, further particulars cannot be provided, but it would
"indicate serious flaws in
the plaintiffs' claim".
b) The defendants concede that it is not necessary to provide evidence (just
bare allegations
of fact), but say that the particulars they require are not
matters of evidence.
c) It is not satisfactory to refer
to the 2004 evidence because the second
defendant was not a party to that proceeding, the transcript of the hearing is
389 pages long, and the "reference to that evidence is meaningless to the
second defendant and the Court".
[27]
The defendants submit that the High Court Rules and the decision in
Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 3 All ER 479
clearly establish that the plaintiffs must particularise pre-trial loss of earnings which
are capable of substantially exact calculation.
The defendants also go further and say
that the plaintiffs ought to provide particulars of earnings going forward because
they have
had the advantage of basing their claim on a precise calculation and so,
pursuant to the principle in Perestrello, ought to give
the defendants access to the
facts underlying the calculation.
[28] Here, the plaintiffs say that the statement of claim provides
adequate
information and that the particulars the defendants' seek are matters of evidence to
be disclosed when the briefs of evidence
are exchanged.
Particulars Not Known?
[29] It is generally no defence to a proper request for particulars that the
particulars
are unknown: McGechan on Procedure at HR185.06. Instead, failure to
provide such particulars may lead the Court to strike out the
pleading: Reid v NZ
Trotting Conference [1984] 1 NZLR 8, 14; Harbord v Monk (1878) 38 LJ 411.
However, McGechan on Procedure at HR 185.06 states that this rule will not apply:
"where
the party seeking particulars knows that the party from whom
particulars are sought does not have them, and the Court considers
the
former is not genuinely embarrassed by the lack of particulars, or that
the particulars sought were within the
knowledge of the requesting
party."
In these situations, the Court can make an order that the particulars do not need to
be
provided (Shaw Savill Co v Auckland Harbour Board (1907) 9 GLR 396; Nand v
Williams HC AK CP 429/97 9 September 1998) or preferably
(according to
McGechan on Procedure at HR185.06), decline to make the order until the person
seeking the particulars has given discovery.
[30] The plaintiffs submit that particulars [1] to [7] are within the defendants'
direct knowledge. They say that these particulars
related to the way the heater was
attached to the flue in the context of the plaintiffs' essential claim that the heater
operated
without complete combustion, giving rise to excess carbon monoxide. The
plaintiffs say that any knowledge they have about the first
defendant seeking advice
from the second defendant came from what they were told by the first defendant.
They also say that the issue
appears to be a dispute between the defendants and as
such, might be better resolved by means of interrogatories between the defendants
ie. that this is not a case of the defendants not being properly appraised of the case
they are facing.
[31] In my view there
is substance in these submissions advanced by the
plaintiffs. I am satisfied the particulars requested under [1] to [7] above are
within
the knowledge of the defendants (McGechan on Procedure HR 185.06) and the
orders sought with regard to these particulars should
be declined. The defendants
application for the further particulars set out at paras [1] to [7] fails. This effectively
deals with
the application relating to those paragraphs. For the sake of
completeness, however, I will go on to mention the other
grounds of opposition
advanced by the plaintiffs here, which grounds also in part relate to the particulars
sought under paras. [8]
to [14] inclusive.
Matters of Evidence?
[32] There is, as the defendants' acknowledge, no requirement to include evidence
in
a statement of claim. McGechan on Procedure states at HR108.05 that "[t]he
statement of claim is not a compendium of evidence, but
rather is a distillation of the
facts essential to the claim emerging from evidence". Conversely, insufficient
particulars cannot
be remedied by reference to briefs of evidence: Price Waterhouse
v Fortex Group Ltd. Therefore, the issue is whether the sought particulars
are
evidence or allegations of fact which need to be particularised. On the particulars
sought under paras [1] to [7] I need make
no finding on this aspect here. So far as
paras. [8] to [10] of the particulars are concerned, these relate to the plaintiffs'
neuropsychological
conditions and their health respectively, and the alleged loss of
future employment. They seek basic statements of fact as I see
it. They are
necessary in my view to inform the defendants of the case they have to answer and
the essential basis of the
plaintiffs' claim and are not mere matters of evidence. An
order for the provision of these particulars is therefore to follow.
Reference to evidence at the 2004 Plumbers Drainlayers and Gasfitters Board
Hearing?
[33] Proper particulars of a plaintiff's
claim are to be `given' by the statement of
claim. As illustrated by the statements from the cases quoted above, the rationale is
first so that the opposite party and the Court can know the bounds of the case and
secondly to enable the opposite party to prepare
to meet it. I do not think that such a
purpose is met by a statement to the effect that the particulars are in a (389 page)
document
and that the defendants (and Court) can find them there. The second
defendant was not involved in that hearing. And, if deficiencies in the pleadings
cannot be cured by reference to the briefs of evidence, I doubt that they can be cured
by reference to this document. This is especially
so where the document is from
another (albeit associated) proceeding of which one defendant was not even a party.
If it had been
necessary to do so here, I would have dismissed this argument
advanced for the plaintiffs.
Special Damages?
[34] Rule 117 requires
claims for special damages to be particularised. McGechan
on Procedure (at HR117.05) considers what "special damages" means here,
and
concludes that it encompasses both of the "principal meanings" of the term, namely:
a) "identifiable loss already
incurred which can be calculated and proved
in terms of such calculation"; and
b) "if the loss alleged was
not a necessary and immediate consequence of
the wrongful act, and is one of which the defendant ought in fairness to
be warned".
[35] The first meaning will clearly cover the plaintiffs' lost earnings up to the date
of the trial
a plaintiff has an "undoubted obligation to plead and particularise any
item of damage which represents out-of-pocket expenses,
or loss of earnings,
incurred prior to the trial, and which is capable of substantially exact calculation":-
Perestrello at 486.
It does not, however, cover the particulars sought as to the
plaintiffs' future earnings.
[36] However, future earnings may be
covered by the second meaning if it is
damage not necessarily and immediately consequent on the alleged wrongful act.
This would,
as the defendants' submit, accord with the rationale for the rule
requiring particulars of special damages as stated in Perestrello
(at 486):
"Such damage is commonly referred to as special damage or special
damages but is no more than an example
of damage which is `special'
in the sense that fairness to the defendant requires that it be pleaded.
The obligation
to particularise in this latter case arises not because the
nature of the loss is necessarily unusual, but because a plaintiff
who
has the advantage of being able to base his claim on a precise
calculation must give the defendant access to the
facts which make such
calculation possible.
The matter is clearly stated in Mayne and MacGregor on Damages
(12th
Edn, 1961) in para 970, where the learned editors write:
Special damage consists in all items of loss which must be
specified by [the plaintiff] before they may be proved and
recovery granted. The basic test of whether
damage is general or
special is whether particularity is necessary or useful to warn the
defendant of the
type of claim and evidence, or of the specific
amount of claim, which he will be confronted with at the trial."
[37]
In Cemix Limited v Flowcrete Asia Sdn Bhd HC AK CIV 2006-404-1537 8
December 2006 Associate Judge Abbott did not consider it necessary
to decide
whether a claim for future lost profits related to special or general damages (compare
Collins v Lorraine's Cake Kitchen
Ltd [1955] NZLR 178, which held that future loss
of profits may usually be claimed as general damages). The plaintiff was suing the
defendant for damages
for the alleged breach of a distribution contract. The
agreement commenced 1 January 2004 and was due to end on 31 December 2008,
but the defendant gave notice of termination in March 2006. In terms of the lost
profits claim, the plaintiff had provided the instructions
given to, and report received
from, their expert accountant. The instructions included the plaintiff's business plan
for the 5 year
term of the contract, a summary of sales for the first 2 years of the
contract and the plaintiff's calculated net profit before taxation
for the 2005-2006
financial year. The report disclosed the methodology adopted by the accountant with
reference to the business plan,
sales information and net profit calculation. However,
the defendant argued that the rules required the plaintiff to supply, in the
form of
particulars, a detailed calculation rather than just the overview. Associate Judge
Abbott said (at [27]) that:
"[w]
hether one classifies Cemix's claim as one for general damages, or for
special damages, Flowcrete is entitled to fair notice
of that claim prior to
trial" .
And later (at [33]):
"I do not consider it necessary or helpful to define Cemix's
claim
generally in terms of one for general damages or special damages. It
has components of both. The issue is rather
whether particulars can
and should be given at this point."
[38] What particulars are required will depend on the particular
circumstances of
the case (Perestrello at 486, citing Ratcliffe v Evans [1892] 2 QB 524, 529; Re
Securitibank Ltd (No 25) above; at [14]). McGechan on Procedure comments at
HR117.06:
"It is generally accepted
that to the extent exact figures can be
supplied, such must be done. Where claims can be upon the basis of
estimates
only, which estimates will be proven, that estimate and the
basis for its calculation must be supplied. The particulars should
contain sufficient detail for the defendant to be able to check and
confirm prior to trial."
[39] In Cemix Limited
v Flowcrete Asia Sdn Bhd Abbott AJ said (at [29]) that the
"imprecise nature of the particulars being sought" was a relevant consideration.
His
Honour described these (at [29]) as:
"a calculation which Cemix has not yet undertaken"
(inserting actual figures into
the disclosed methodology) as opposed to particulars of
facets of the calculation disclosed. This was in contrast to Monk v Redwin
Aircraft
Co Ltd [1942] 1 KB 182 where the Court was asked to order specified particulars of
fact, namely whether the plaintiff had obtained other employment and
if so, when,
with whom, from when, at what salary and whether it was continuing.
[40] The second plaintiff may not have been earning
in the past although as I
understand it the first plaintiff was earning, and so the calculation of their lost past
and future earnings
is bound up in a single calculation of lost earnings. They say that
the calculation and basis for it is set out in the notice of
particulars dated 2 October
2007 and that it cannot be particularised with any more detail. It is the plaintiffs'
submission that
whether the calculation is accurate and the proper method to
quantify their loss are matters of evidence for the trial Judge.
[41]
I agree that the trial Judge is to assess the appropriateness of the calculation.
However, r 117 is designed to allow the other
party access to calculations and
underlying facts so that they are in a position to make proper submissions to the trial
Judge on
this issue. In my view the particularisation requested by the defendants in
paras. [11], [12], [13] and [14] is appropriate and it
has not been properly provided
here. An order to this effect is to follow.
Orders Further Particulars
[42] The defendants'
application for further particulars has been partly successful
here. Orders are now made that within 15 working days of the date
of this judgment
the first and second plaintiffs are to provide the further particulars noted in paragraph
[13] of this judgment
under particulars numbered [8], [9], [10], [11], [12], [13] and
[14].
Medical examination
[43] This part of the defendants'
application is brought pursuant to s100 of the
Judicature Act 1908 ("the Act") and r 318 to r 321 of the High Court Rules.
[44]
Section 100 of the Act states:
"100 Independent medical examination
(1) Where the physical or mental condition
of a person who is a
party to any civil proceedings is relevant to any matter in
question in those proceedings,
the High Court may order that that
person submit himself to examination at a time and place
specified
in the order by one or more medical practitioners
named in the order.
(2) A person required by an order under
subsection (1) of this section
to submit to examination may have a medical practitioner chosen
by that
person attend that person's examination.
(3) The Court may order that the party seeking the order pay to the
person to be examined a reasonable sum to meet that person's
travelling and other expenses of and incidental to
the
examination, including the expenses of having a medical
practitioner chosen by that person attend
that person's
examination.
(4) Where an order is made under subsection (1) of this section, the
person required by that order to submit to examination shall do
all things reasonably requested, and answer all
questions
reasonably asked of that person, by the medical practitioner for
the purposes of the examination.
(5) If a person ordered under subsection (1) of this section to submit
to examination fails, without reasonable
excuse, to comply with
the order, or in any way obstructs the examination, the Court
may, on terms, stay
the proceedings or strike out the pleading of
that person. ..."
[45] Rules 318 and 319 are also relevant for present
purposes. They provide:
"318 Order for medical examination
(1) An order under section 100(1) of the Act may be made--
(a) At any time after pleadings are closed, on the application
of any party to the proceeding;
or
(b) By the Court of its own motion.
(2) The time and place of the examination shall be fixed by the order.
319 Report
An order made under
section 100(1) of the Act shall require any
medical practitioner making the examination--
(a) To furnish to
the Court, within such time as may be
specified in the order, a report in writing setting out--
(i) The medical practitioner's clinical findings; and
(ii) The medical practitioner's opinion of
the physical
condition or mental condition or both of the person
examined so
far as the same is relevant to the matter
in question in the proceeding; and
(iii)
Where appropriate, the medical practitioner's
prognosis in respect of the condition; and
(b) If the order was obtained on the application of any party, to
deliver to that party within
the same time, a copy of the
report furnished to the Court.
[46] In exercising its power under s. 100, the
Court will determine first, whether
the threshold jurisdictional requirements are met and secondly, whether to exercise
its discretion
to make the order (see New Zealand Permanent Trustees Limited v
National Mutual Life Association of Australia Limited HC WN CIV
2005-485-411
17 July 2006).
[47] The threshold requirements are that:
a) the order is sought against a party to the proceedings;
b) the physical or mental condition of that person is relevant to any matter
in question; and
c)
the examination is to be by a "medical practitioner", defined as a "health
practitioner who is, or is deemed to be, registered
with the Medical
Council of New Zealand ... as a practitioner of the profession of
medicine".
(see New Zealand
Permanent Trustees Limited at [20]).
[48] Here, the orders which the defendants seek are that the plaintiffs submit to
medical
examination and so they patently relate to a party. Equally clearly, the
plaintiffs' physical condition is at the heart of their
claim in the substantive
proceedings. They rely on changes to their physical condition to establish that they
have been subjected
to carbon monoxide poisoning caused by the defendants. The
plaintiffs concede that whether they have in fact suffered carbon monoxide
poisoning is a central issue.
[49] With respect to the various professionals that the defendants seek to have
examine the first
and/or second plaintiffs:
a) Professor Desmond Gorman is a toxicologist and a disability medicine
expert. He
has been registered with the medical council of New Zealand
since 1978.
b) Dr Anthony Marks and Dr Robin Moir
are psychiatrists and as such fall
within the "medical practitioner" definition. Both are registered with the
medical council of New Zealand.
c) Dr Shirley Hosking is a New Zealand registered neuropsychologist and
so does not fall within the "medical practitioner" definition.
[50] So far as Dr Hosking is concerned, however, the plaintiffs
have not objected
to being examined by Dr Hosking and the Court clearly has the power to make an
order to this effect under its
inherent jurisdiction. The considerations under the
Court's inherent jurisdiction are, for present purposes, the same as for s 100
orders
(see McGechan on Procedure at J100.05). For the sake of convenience, therefore, I
will consider the position in relation to
Dr Hosking alongside that of the other
medical practitioners.
[51] The discretion requires the Court to weigh the reasonableness
of the medical
examination orders sought by the defendants against the reasonableness of the
plaintiffs' refusal: Murray v Roman
Catholic Archdiocese of Wellington & ors
(2004) 17 PRNZ 216; Anderson v Northland Health Limited (1998) 12 PRNZ 338.
[52] And the examination must be reasonable in the interests of justice:
McGechan on Procedure at J100.05. Factors that will or
may be relevant in the
Court's exercise of its discretion here include the relevance of the proposed medical
evidence and any risk
or unpleasantness involved in the examination (see New
Zealand Permanent Trustees Limited; McGechan on Procedure at J100.05).
[53]
The defendants need to establish that they cannot properly prepare their case
without independent medical examination of the plaintiffs
(New Zealand Permanent
Trustees Limited; McGechan on Procedure at J100.05). In this respect, the Court has
acknowledged that defendants
will be at a disadvantage in leading evidence and
responding to the plaintiffs' evidence if their expert witnesses are restricted
to
analysing and commenting on reports done by the plaintiffs' witnesses: see Murray v
Roman Catholic Archdiocese at [33]; New Zealand
Permanent Trustees at [46].
Miller J commented in Murray (citing Widgery LJ in Edmeades v Thames Board
Mills Ltd [1969] 2 QB 67) that:
"it is difficult if not impossible to compensate for the advantage that the
plaintiff's psychiatrist would have"
in such a situation, because "if the trial
Judge thinks the plaintiffs' experts are credible, the Judge would then have to
follow their evidence and a great injustice to the defendants might result."
[54] The cases also acknowledge that the Court's
power under s 100 impinges on
the plaintiffs' rights to personal liberty, but that, in these particular circumstances,
the test is
what is reasonable in the interests of justice: New Zealand Permanent
Trustees at [52].
[55] In the present case, the plaintiffs
concede that it is in the interests of justice
for the Court to make an order requiring them to submit to certain independent
medical
examinations under s 100. They have consented to examinations by Dr.
Marks, Dr. Moir and Dr. Hosking. However, they object
to examination by
Professor Gorman personally, and in addition they ask the Court to place certain
conditions on the examinations
by the other practitioners.
Objections to Professor Gorman
[56] A plaintiff's objection to a particular medical practitioner
will only be upheld
if it is "soundly based" for example, on the basis of valid concerns about the
practitioner's expertise or
qualifications (see Anderson v Northland Health Limited).
Moreover, it has been suggested in a situation where there was a limited
choice of
expert witnesses in a particular field and the plaintiff had already had the opportunity
to freely choose their own expert,
that the plaintiff would need to "demonstrate some
compelling reason why the defendant should have its choice of expert witnesses
in
effect determined by the plaintiff": Anderson v Northland Health Limited at 340 per
Laurenson J.
[57] The plaintiffs object
to examination by Professor Gorman because he has
previously been instructed by the defendants in relation to issues in this case.
In 2004
Professor Gorman provided a lengthy report to the defendants which, amongst other
things, gave his opinion that the likelihood
of carbon monoxide causing the
plaintiffs' symptoms was between "unlikely" and "possible". Professor Gorman was
then briefed to give
evidence for the first defendant on this issue before the Plumbers
Drainlayers and Gasfitters Board. The plaintiffs say that Professor
Gorman did not
indicate that his report was provisional or incomplete. They contend he expressed
his views with no qualifications.
As a result, they say that Professor Gorman is not
an appropriate person to conduct an "independent" medical examination.
[58]
Nor, in the plaintiffs' submission, can Professor Gorman's acquiescence to
the code of conduct for expert witnesses be used to "confer"
independence where it
would otherwise not exist or to undo partiality.
[59] In response, the defendants argue that the plaintiffs'
objections have not in
any way established that Professor Gorman has any bias or prejudice. The
defendants do acknowledge that Professor
Gorman's 2004 report did not state a need
for further testing nor did it comment on any uncertainty because of any lack of
examination
of the plaintiffs on his part. However, the defendants say that this was
because they had asked Professor Gorman to undertake a clinical
audit by file review
only. The defendants say that any evidence Professor Gorman gave on the first
defendant's behalf was entirely
commensurate with his report.
[60] The defendants submit that Professor Gorman is properly qualified and a
recognised world expert
in the area they maintain he is one of the top three experts
on carbon monoxide poisoning in the world and is an acknowledged expert
in
toxicology and disability medicine. Also, the defendants say that Professor
Gorman's impartiality and expertise are "unquestionable",
that he has sworn to
undertake the examinations impartially and in accordance with the High Court code
of conduct for expert witnesses, and that he has confirmed that he has no
predetermination over interpreting any matters that he may discover at the
examinations.
[61] In Anderson v Northland Health Limited, the doctor nominated by the
defendants had previously prepared a report for ACC about
the plaintiff.
Nevertheless, the Court accepted the doctor's assurances that he was not biased or
predetermined in his opinions as
to the outcome of the plaintiff's case (in which the
doctor had no interest). Laurenson J commented that the plaintiff appeared not
to
have appreciated the role of the doctor "to provide a dispassionate clinical report for
the purposes of another party involved
in the litigation" and that the plaintiff's
frustration that the doctor's views were contrary to her wishes did not render it
unreasonable
for the defendants to continue to secure the doctor's view.
[62] In New Zealand Permanent Trustees Ltd, the defendants sought
an order that
the plaintiff be examined by a psychiatrist who had already been retained by the
defendants to give a detailed written
report (dated approximately 9 months earlier)
analysing the plaintiffs' previous medical and psychiatric reports. The Court found
that this was the reason why the defendant nominated this psychiatrist in its s 100
application, in that it would give the psychiatrist
important information with which
she could build on her pre-existing analysis. It was considered that this would both
assist the
defendant to properly prepare its case and it would assist the Court by
ensuring a more comprehensive assessment of the plaintiff's
condition was in
evidence (at [40]).
[63] However, in response to these decisions, the plaintiffs here say that the Court
in Anderson, at least, failed to properly assess and apply the requirement of
independence of the practitioner and they say that
it is not clear from the facts of
New Zealand Permanent Trustees Ltd that the expert had expressed a previous
opinion. The plaintiffs
emphasise the legislative choice of title for s 100
("independent medical examination") and compare it to possible alternatives -
for
example, "medical examination by other party's expert". They say that
"independent" has a clear meaning which must be given proper
effect in s 100
orders.
[64] In this respect, counsel for the plaintiffs cite the Privy Council decision in
Taito v R [2002] UKPC 15; (2002) 19 CRNZ 224 as being the "most powerful example of a
professional, objective "expert" being compromised in his or her independence"
namely,
a Judge who had previously declined an application for legal aid hearing the
subsequent appeal. The plaintiffs say that, even a Judge,
who is trained to be
objective and whose independence is "at the heart of their function", did not have the
requisite appearance
of independence as a result of his/her dual role. It is the
plaintiffs' submission that Professor Gorman is in the same position
here and that,
like in Taito, a fair-minded and reasonable viewer would not see him as bringing an
independent mind to the examination.
[65] In reply, counsel for the defendants submitted that the word "independent" in
the heading to s 100 refers to the practitioner
being "independent" from the plaintiff.
I note, without expressing a view, that this interpretation would seem to better accord
with
the need that is being addressed by the section the defendants' need for a level
playing field in terms of information or expert
opinion regarding the plaintiff's
physical or mental condition: see, generally, Murray at [17] and the reality that
there is no
reciprocal requirement that any medical practitioners the plaintiff calls as
expert witnesses are independent beyond the requirements
of medical ethics and the
code of conduct for expert witnesses.
[66] In any event, in my view the present case is clearly analogous
to the situation
in New Zealand Permanent Trustees Ltd (and, indeed, Anderson). In both that case
and the present case, the plaintiffs
failed to identify any evidence that the defendants'
chosen medical practitioner would not provide a truly independent examination.
The
mere fact that the practitioner had previously completed work for the defendants
and that the result of this work was not
in the plaintiffs' favour does not
demonstrate bias or predisposition in the defendants' favour, or even
predetermination.
[67]
Moreover, I do not accept the plaintiffs' submissions that Professor
Gorman's 2004 report is expressed in unqualified terms. At
numerous places the
report refers to a lack of information (see, for example, p 4 at [4], p 6 at [3], p 8 at
[1], [4] and [5]) and
I note counsel for the defendants' submission that much of this
information has now been made available through discovery.
[68]
Also, and again as in New Zealand Permanent Trustees Ltd, Professor
Gorman has given sworn evidence declaring his impartiality
and his acceptance of
the precepts of the code of conduct for expert witnesses. There is a clear difference
between a pre-existing
view and a predetermined view. A pre-existing, but not
predetermined, view can and will evolve in the light of new information. I
am not
persuaded that there is any reason to doubt that he can and will act in an impartial
and proper manner.
[69] Therefore,
I find that the plaintiffs have not raised any "soundly-based"
objection to the defendants' nomination of Professor Gorman as a medical
practitioner to conduct the examination under s 100. There is no reason why the
defendants and indeed the Court should not have the
assistance of the opinion of the
eminently qualified Professor Gorman in this matter
Conditions
[70] The plaintiffs seek to
have the Court place conditions on the medical
examinations to be ordered namely:
a) that the plaintiffs' own medical
practitioners may be present at the
examinations;
b) that Ms Pickard may have a support person present during
Dr Marks'
examination and that Ms Pickard and her father Mr Alan Pickard may be
present at Dr Moir's examination
of Mr Taylor;
c) that the medical practitioners do not contact or interview third parties as
part of their
examination; and
d) that the psychiatrists' examinations are limited to 3 hours, split over two
periods
of 1.5 hours.
[71] S. 100(2) clearly stipulates that at the examinations the plaintiffs are entitled
to have their own medical practitioner present. The
defendants and the nominated
practitioners accept this.
[72] The plaintiffs' submissions do not specify reasons for their request
that other
support people may also be present at the examinations. I assume that this is sought
to alleviate or minimise the distress
that they say will result from the examinations
(as deposed to in the Affidavit of Amanda Pickard dated 5 March 2008 at [9] and
[10]).
[73] However, there is evidence from Dr Moir that, although Mr Taylor could
have a support person present, this should not
be his mother and/or grandfather
because their presence could "influence the interview process and make it difficult
for Troy to
provide a free and unencumbered account". Dr Marks' views on this
condition were not available.
[74] The defendants submit
that s 100 does not provide for support people beyond
the party's medical practitioner. The defendants say that s 100(4) requires
that the
plaintiff do all things reasonably requested by the medical practitioner for the
purposes of the examination, and that it
should therefore be the practitioner's choice
whether to allow support people to attend. The defendants say that the practitioner
may well have valid medical reasons why a support person should not attend. It is
the defendants' submission that the Court should
not make any order concerning
support persons under s 100. In my view there is substance in these submissions
advanced for the defendants.
The plaintiffs may have their own medical
practitioners present at the examinations in terms of s 100(2). Beyond this,
however,
there is to be no order that other "support" persons may also be present at the
examinations.
[75] With respect to
contact with third parties, Dr Marks has indicated he would
want to interview one or two people who know Ms Pickard well and Dr Moir
would
like to interview Ms Pickard and one of Mr Taylor's teachers. Dr Moir says it is
standard practice for a parent to be interviewed
as part of a child or adolescent's
psychiatric evaluation because the child will not have knowledge of important parts
of his/her
developmental, personal and family history. He says interviewing a
teacher is also "standard good practice" because it "provides
insights as to how the
young person functions in settings other than in the home or with the family". Dr
Moir says that being unable
to make these contacts would "considerably decrease the
thoroughness and completeness of [his] assessment".
[76] The plaintiffs
object to any order directing that the plaintiffs' make third
parties available to the medical practitioners, although the first
plaintiff deposes that
"I do not rule out co-operating with this request once I am familiar with Dr Marks'
interviewing style and
techniques" (affidavit of Amanda Pickard dated 5 March
2008).
[77] The defendants concede that the Court may not have jurisdiction
to order a
non-party to submit to interviews with medical practitioners under s 100. But, the
defendants say that the plaintiffs'
obligation under s 100(4) to comply with
reasonable requests would preclude them from obstructing the practitioners'
reasonable contact
with third parties to request their voluntary co-operation.
[78] Again I see force in the defendants' submissions here. Section
100 clearly
does not empower the Court to make orders against non-parties. Nor would it seem
from a strict interpretation of s 100
that it is appropriate for the Court to order that
Ms Pickard submit to examination by Dr Moir with respect to Mr Taylor's physical
or mental condition. However, the parties who are the subject of the order are to
comply with reasonable requests of the medical
practitioner "for the purposes of the
examination". There is no requirement that the requests be during the examination
and, indeed,
one can easily imagine where medical tests were to occur which
reasonably required the patient to forego eating for a time beforehand, or the like. I
find that Ms Pickard
and Mr Taylor have a duty under s 100(4) not to unreasonably
obstruct the practitioner making a proper and appropriate approach to
third parties
for the purposes of their examinations. But no further order is required here.
[79] In terms of the requested
time limits, counsel for the plaintiffs acknowledged
in the course of the hearing before me that it was irrational to impose strict
time
limits on the psychiatrists' interviews, provided that the plaintiffs had their own
medical practitioner present to advise on
the reasonableness of the time spent.
Moreover, counsel acknowledged that the plaintiffs' expert had already examined
the plaintiffs
as I understand it for a total of 4 hours.
[80] The original three hour time limit requested was predicated on information
Ms
Pickard says she received from a District Inspector of Mental Health, who
allegedly said that this amount of time would suffice for
a psychiatrist to examine a
new patient.
[81] The defendants say that the Court should not impose a time limit on the
interviews.
Dr Moir and Dr Marks have both given evidence to the effect that they
will (likely) require, in the case of Dr Moir, 3 to 6 hours
and in the case of Dr Marks,
approximately 6 hours (with breaks every 1 to 1.5 hours, and possibly spread over
more than one day).
The defendants say that Dr Moir and Dr Marks are experts and
their time estimates are based on their experience and the circumstances
expected
here. The defendants dismiss the alleged estimate of the District Inspector of Mental
Health as inadmissible hearsay and
say that the plaintiffs have failed to adduce
admissible evidence disproving Dr Marks' and Dr Moirs' estimates. Moreover, the
defendants
say that the examinations by the plaintiffs' medical practitioners have not
been restricted (ie. it is an issue of fairness); that
it would be irrational to jeopardise
the practitioners' one opportunity to fully and properly examine the plaintiffs; and
that, subject
to the constraints of reasonableness and medical ethics, it is common
sense that an examination should take as long as necessary.
The defendants again say
that s 100(4) requires the plaintiffs to do all things reasonably requested by the
practitioner for the
purpose of the examination, and that this must include
compliance with a reasonable timeframe for the interview.
[82] I agree
that it is unreasonable to artificially predetermine how long a medical
examination will take. I find that this is a matter that
is appropriately left within the
discretion of the medical practitioners, as guided by proper medical practice. I am
not of the view
that there is any indication that the nominated medical practitioners
will extend the duration of the examinations beyond that which
is necessary, and so I
decline to make any order on this point.
Other requests
[83] The plaintiffs request that the defendants
meet the costs of having their
medical practitioners present during the examinations.
[84] The defendants submit that they should
not be required to meet the costs of
the plaintiffs' medical practitioner because:
a) their presence is not required but
is a matter of choice, and the plaintiffs
should bear the costs of their own choice;
b) the plaintiffs have
not said why they require their medical practitioners'
presence;
c) the plaintiffs have not provided any costs
estimates; and
d) the plaintiffs have not indicated whether an application has been made to
the Legal Services
Agency to cover the costs.
[85] Section 100(2), however, clearly gives the plaintiffs' the right to choose to
have their medical
practitioner present, and s 100(3) gives the Court the power to
order that the defendants pay a reasonable sum to meet the expenses
of doing so. The
section does not require the plaintiffs to give reasons for their choice.
[86] Therefore, I propose to adopt the approach of Miller J in Murray and
order
that the defendant meet the reasonable costs of the plaintiffs' chosen medical
practitioners attending the examinations, but
that they will be costs in the cause. An
order to this effect is to follow.
[87] Lastly, the plaintiffs also ask that, if possible,
the examinations be ordered to
occur close together and in the school holidays so that the family can recover
together from the distress
of revisiting the trauma of past events and so as to avoid
disruption to Mr Taylor's schooling.
[88] Rule 138 states that I must
specify the time and place of any examination
ordered. The next secondary school holidays are from Saturday 19 April 2008 to
Sunday
4 May 2008. It is reasonable in my view that, if possible, the examinations
be scheduled during that time.
"Unless Order"
[89]
The defendants ask that the Court make an order that unless the plaintiffs'
comply with the orders under s 100 (and under the
Court's inherent jurisdiction) the
proceeding will be stayed or struck out. Such an order is said to be available pursuant
to the
Court's power to:
a) make orders subject to any conditions (under r 236 of the High Court
Rules);
b) enforce orders by the means in r 258 of the High Court Rules; and
c) stay or strike out the proceeding if the plaintiffs
fail to comply with an
order for a medical examination or obstruct an examination in any way
(under s. 100(5)
of the Act).
[90] The defendants say that an `unless order' is required because the plaintiffs
have already caused several delays
and they will be unfairly prejudiced if the
plaintiffs cause further delays at this late stage. The defendants point out that the
Court considered making an `unless order' at the case management conference on 12
July 2007 and foreshadowed that such orders were
likely if there was any further
default.
[91] However, I am not convinced that such an order is necessary here. Before me
counsel
for the plaintiff assured the Court that the scheduled September 2008 hearing
date is precious to the plaintiffs and they have confirmed
that they are ready to attend
any medical examinations ordered by the Court. Moreover, the defendants are not
precluded from making
an application under s 100(5) if it does become necessary.
Medical Examinations Orders
[92] For the reasons outlined above,
the defendants' application for orders under
s100 of the Judicature Act 1908 succeeds. Orders are now made under s 100 and,
with
respect to Dr Hosking, under the Court's inherent jurisdiction, as follows:
a) That the first plaintiff Ms. Amanda Pickard
shall submit herself to
examination by Professor Gorman, Dr Hosking and Dr Marks at a time,
if possible,
between 19 April 2008 and 4 May 2008 and at premises to be
advised by the defendants, for the purpose of Professor Gorman,
Dr
Hosking and Dr Marks furnishing a report to the Court under r 319 of the
High Court Rules.
b)
That the second plaintiff Mr. Troy Taylor submit himself to examination
by Professor Gorman, Dr Hosking and Dr Moir
at a time, if possible,
between 19 April 2008 and 4 May 2008 and at premises to be advised by
the defendants,
for the purpose of Professor Gorman, Dr Hosking and Dr
Moir furnishing a report to the Court under r 319 of the High
Court
Rules.
c) That the plaintiffs are to agree with the defendants on the time and place
of
the medical examinations within 14 days of the date of this judgment,
or failing agreement the parties are to file and
serve a memorandum by
that date and a determination by the Court is to be made.
d) That in terms of r 319,
the reports are to be provided to the Court and the
defendants by Professor Gorman, Dr Hosking, Dr Marks and Dr Moir
within 30 working days of
the date of the respective examinations.
e) That Ms Pickard and Mr Taylor must do all things reasonably requested
by the said medical practitioners as part of those examinations and they
must answer all questions reasonably
asked of them by the medical
practitioners, for the purposes of the examination, including but not
limited
to, requests relating to the duration of the examinations,
attendance or non-attendance of support persons and requests
to
interview third parties.
f) That Ms Pickard and Mr Taylor may each have their own medical
practitioner attend the examinations with them pursuant to s 100(2).
g) That the reasonable expenses of and incidental
to the above examinations
of Ms Pickard, Mr Taylor and the reasonable costs of any medical
practitioner
Ms Pickard and Mr Taylor have chosen to attend the
examinations with them are to be met by the defendants (with those
costs
of the plaintiff's medical practitioners being costs in the cause).
Costs
[93] The plaintiffs are legally
aided. The defendants have been partially
successful and partially unsuccessful in the present applications before the Court.
[94] There is to be no order for costs on these applications. Costs are to lie where
they fall.
`Associate Judge D.I. Gendall'
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