Durst & Durst v Petroleum Products Supplies Ltd [2006] WSSC 64 (24 November 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

CHRISTIAN DURST and BARBARA DURST
of Ululoloa, Restaurateurs
Plaintiffs

AND

PETROLEUM PRODUCTS SUPPLIES LIMITED
a duly incorporated company carrying on business at Sogi.
Defendant

Counsels: Mrs Ruby Drake for Plaintiffs
Mr Semi Leung Wai for Defendant

Hearing: 16th November 2006
Judgment: 24th November 2006

JUDGMENT OF VAAI J

In these interlocutory proceedings the defendant by notice of motion dated the 27th September 2006 seek the following orders:

(i) that the plaintiff provide full and better particulars of certain paragraphs of the Statement of Claim;

(ii) that the plaintiffs submit to medical examination to be conducted by a medical practitioner engaged by the defendant

(iii) that the plaintiffs provide copies of certain documents, listed in the plaintiff’s list of discovered documents, for inspection by the defendant

(iv) that the proceedings be stayed until the plaintiffs comply with the said orders.

Background

As a result of a traffic accident the plaintiffs on the 23rd December 2005 filed and served on the defendant a statement of claim and summons claiming damages for personal injuries, loss of earnings and loss of vehicle. Before filing a statement of defence the defendant on the 27th January 2006 filed and served on the plaintiffs a request for full and better particulars of the statement of claim. The request was responded to on the 8th February, and on the 27th February the defendant filed and served a statement of defence and counterclaim. On the 17th March the plaintiff filed a statement of defence to the counterclaim. In the meantime the hearing of the action was already scheduled for hearing in the week beginning the 11th December 2006. In response to an order for discovery dated the 5th May a list of documents was filed and served by counsel for plaintiffs on the 31st May.

The present motion dated the 27th September 2006 was served on the 28th September, called for mention on the 16th October and heard on the 16th November; two weeks before the fixture date.

I shall now deal with the orders sought.

1. Full and better particulars

The request is identical with the earlier request made on the 27th January and responded to by the plaintiffs on the 8th February. In the present application the defendant is virtually duplication the same request, seeking in similar phraseology the further particulars of the same paragraphs of the statement of claim which it sought some 7 months earlier. Following the response by the plaintiffs to the first request the defendant filed and served its statement of defence and counterclaim, as well as the order for discovery. I reject the contention by counsel for the defendant that the pleadings are general and vague thus creating difficulties for the defendant to defend the action. The request is unreasonable; it tantamounts to extracting evidence in support of the allegations and the delay is not excused. The request is denied.

2. Medical Examination by defendants doctor
   

As a result of the injuries suffered by the plaintiffs it is alleged that as a consequence they have been subjected to psychiatric disorders and psychological stress. It is common ground that the plaintiffs have been examined by doctor Parkinson, an expatriate psychiatrist, and it is also accepted that counsel for the defendant has had access to the written report prepared by doctor Parkinson. The plaintiffs have also been examined at the MedCen Hospital and by a doctor in private practice. Written reports from these two examinations are also the subject of this application and will be dealt with later.

The timing of the request by the defendant to have the plaintiffs examined by its own medical team is in my view unreasonable and it will be unreasonable to stay the proceedings to enable the defendant’s doctor examine the plaintiffs. If the proceedings are to be stayed the next available fixture date on the court’s calendar will be November 2007. However the plaintiffs have agreed to be examined by a medical doctor with experience in the field of psychiatry and provided the doctor is instructed through the court and the written report from the examination is made available to both parties. Due to the time constraint the defendant is to provide in writing the doctor’s name together with his or her qualifications to the Registrar of the Court by the 28th November and the Registrar will advise both parties of the day of examination provided of course the doctor nominated is qualified and willing to examine the plaintiffs.

3. Privileged Documents
   

The plaintiffs object to produce for inspection by the defendant the two medical reports already referred to as well as a letter from EL Wilson and Associates with enclosures, on the basis that they are privileged and therefore cannot be disclosed. No affidavit was filed by the plaintiffs to show the basis for the privilege but I accept from counsels submissions and the nature and essence of the claim itself that Mr Wilson and the doctors were consulted by the plaintiffs after the accident and in contemplation of the law suit so that the doctors reports and Mr Wilson’s letter attract litigation privilege. As earlier stated the report by Doctor Parkinson has been cited counsel for the defendant during the trial of a criminal nature conducted in the District Court so that the present application concern the other two medical reports.

Since the documents were prepared predominantly for the purpose of litigation they are privileged from inspection by the defendants: See Waugh v British Railways Board [1979] UKHL 2; (1980) AC 521; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Esso Australia Resources Ltd v Federal commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Counsel for the plaintiff however in response to questions from the bench told the court the two medical reports will be produced at the substantive hearing as part of the plaintiffs evidence so that in essence the plaintiffs are claiming that for the time being the two medical reports are privileged, but that privilege will be waived at the hearing of the action. No explanation has been tendered either by way of affidavit or through counsel’s submission to maintain the refusal to produce the reports until the date of hearing which in my view will be contrary to public interest as it will undoubtedly subject the defendant to surprise and probably result in an adjournment of the trial to avoid unfairness to the defendants and to prevent trial by ambush. As the two reports will be produced at the hearing by their authors there will be an intentional waiver of the privilege now claimed and the privilege is therefore lost. See Mancorp Pty Limited v Baulderstone Pty Ltd (1991) 57 SASR 87; AG for Northern Territory v Maurice [1986] HCA 80; (1966) 161 CLR 475;

Since the two medical reports have lost their privilege they should be produced for inspection and in view of the time constraint the reports should be produced no later than 4 pm Tuesday 28th November.

Costs are reserved.

Vaai J