Court denies defendants’ application to interrogate on alcohol consumption

Key Points
  • McCallum (No 2) is a reminder of the restrictive nature in seeking the Court’s leave to administer interrogatories in personal injuries cases in NSW.
  • An order for interrogatories in personal injury claims is not to be made unless the court is satisfied that special reasons exist and the order is necessary at the time it is made.
  • Administering interrogatories for the purposes of qualifying an expert in personal injuries claims will not in isolation satisfy the statutory requirements as either ‘necessary’ or ‘special reasons’.


Catastrophic spinal injuries were suffered when the plaintiff fell off a balcony of rental accommodation in June 2012 due to a faulty railing.

The owners of the property sought the Court’s leave to administer interrogatories regarding the plaintiff’s alcohol intake prior to the fall.

The property owners had previously sought the Court’s leave to administer interrogatories in relation to the plaintiff’s alcohol and medication intake but at the time of that application, the Court was not convinced that the order was necessary or there were ‘special reasons’ for the interrogatories. The Court concluded that there was sufficient information, namely subpoenaed hospital and ambulance records on the date of subject fall, available to the defendants’ expert toxicologist to provide a report.

In the second application, the defendants no longer pressed for interrogatories on the medication ingested but rather they sought specifics on the plaintiff’s alcohol consumption prior to her fall. The Defence pleaded a reliance on s50 of the Civil Liability Act, which provides that there is no recovery for damages if at the time of the act or omission which caused the injury, the plaintiff was intoxicated to an extent that their capacity to exercise reasonable care and skill was impaired.

The Court found that the defendants had again failed to satisfy the statutory test of necessity and special reasons to be granted leave to administer interrogatories. The Court did not consider that special circumstances existed as an expert toxicologist would be able to state what the likely effect of varying levels of consumption of alcohol over a period of time would have had on the plaintiff’s functioning. It was not necessary that the expert know the precise levels of alcohol intake to be able to provide a report.

Furthermore, the defendants’ expert was in a position to prepare a report based on plaintiff’s hospital and ambulance records. In the event the evidence from clinical records as to the plaintiff’s use of alcohol and medication prior to the fall had not been available, then the outcome may have been different.

McCallum (No 2) serves as a reminder that special reasons and necessity are required in order to succeed in the Court granting leave to administer interrogatories. Obtaining precise responses to qualify a suitable expert in personal injuries claims was found not to satisfy the statutory test of necessity in this case.

Post by Eliza ‘Ofa Finau and Karen Kumar 

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