Interrogating a plaintiff before filing a defence?

In an injury claim, though not one concerning medical treatment, the defendant (not yet having filed a defence) sought to interrogate the plaintiff as to intoxication: McCallum v Reynolds [2016] NSWSC 366.

The defendant noted some references to alcohol in the hospital record but said (at [11]) of the hospital record:

…although it lays a foundation for a belief that intoxication is an issue in the case, at this stage is insufficient to justify the defendants filing a defence. He submits that given the particular responsibilities of lawyers in personal injury cases, it is therefore necessary for the defendant to have an order for interrogatories to enable it to obtain the opinion of an expert toxicologist or pharmacologist about whether on an accurate account of the plaintiff’s drinking, intoxication is indeed an issue.

The defendant’s application was refused, with the court saying at [22] – [23]:

As it was put by Rothman J in Chong v Nguyen [2005] NSWSC 588, the applicant must show that the interrogatories are reasonably required, or legally ancillary, to the achievement of a fair trial in the case. I would have thought that the material contained in the clinical records attached to Mr Ford’s affidavit of itself gave rise to a legitimate question in the mind of the defendant’s solicitor about whether intoxication was an issue. I notice that the third and fourth defendants have raised intoxication in the defence that they have already filed. It seems to me that professional responsibilities of a practising lawyer do not require certitude in such matters, rather, all that is required is that the lawyer conscientiously has a belief on the basis of material available to him or her, and upon a view of the law reasonably arguable, that there will be evidence available to be led at the trial which will fairly raise for determination the issue in question.

To explore with the plaintiff whether she had been drinking, what she had been drinking, over what period of time and how much, prior to filing any defence and if positive responses from the defendants’ point of view are obtained, qualifying a suitable expert, are not of themselves matters which qualify as either necessary or constitute special reasons for the purpose of this application.

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