Anning v The State of Tasmania
[2003] TASSC 117
•7 November 2003
2003] TASSC 117
CITATION: Anning v The State of Tasmania [2003] TASSC 117
PARTIES: ANNING, Noreen
v
THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1720/1997
DELIVERED ON: 7 November 2003
DELIVERED AT: Hobart
HEARING DATES: 3 November 2003
DECISION OF: Master S J Holt
CATCHWORDS:
Procedure – Discovery and interrogatories – Interrogatories – Upon what matters – In general – Oppressive interrogatories.
Supreme Court Rules 2000 (Tas), r410.
Aust Dig Procedure [466]
REPRESENTATION:
Counsel:
Plaintiff: P J Harris
Defendant: P Turner
Solicitors:
Plaintiff: Ogilvie Jennings
Defendant: Director of Public Prosecutions
Judgment Number: [2003] TASSC 117
Number of Paragraphs: 19
Serial No 117/2003
File No 1720/1997
NOREEN ANNING v THE STATE OF TASMANIA
REASONS FOR DECISION MASTER S J HOLT
7 NOVEMBER 2003
The plaintiff, who claims damages for personal injury, has objected to answering a number of interrogatories and the defendant has applied for an order compelling answers. Although the application was not made within the time limited by the Supreme Court Rules 2000 (“the Rules”), r410(2), no point has been taken in this regard.
By her statement of claim the plaintiff says that on 6 September 1994 whilst employed by the defendant she was working in a storeroom. There were many boxes on the floor and in order to reach one of the boxes she put her right foot in a gap between boxes, twisted to the left and then reached down towards one of the boxes. She says that the adoption of this posture caused her to suffer damage to several spinal discs (“the incident”). According to her particulars the plaintiff has a history of back problems predating the incident. The particulars state that the plaintiff suffered “intermittent back pain and stiffness commencing in approximately 1991 with radiation into the left leg and foot”. They state that prior to the incident the plaintiff had experienced “neck stiffness and right arm pain”. The particulars also state that earlier on the day of the incident the plaintiff had suffered from a “momentary twinge in the left buttocks (sic)”.
The proof of evidence of general practitioner, Dr G J Bleach, dated 9 April 2001, includes the following:
“Mrs Anning first consulted me in May 1991 for a routine gynaecological screen. Standard history revealed that she had a past medical history of back problems in that her neck would become stiff and cause right arm pain and her lumbar area troubled her causing radiating ache and paraesthesia to the left leg and toe. In August 1991 she presented with one to two weeks exacerbation of these symptoms having been on her feet a lot and associated with colder weather. She had a low back ache which radiated in to the left leg and foot. It was a dull ache and felt heavy/numb. There was no tingling or burning and it woke her at night. She told me that she had had imaging of her spine about 18 months previously, but the result was unavailable.
…
In August 1992 she returned with back symptoms over the last 3 weeks – a mild back ache, buttock and right leg and a numb spot on the left leg. ... It settled with simple analgesia and low dose Diazepam.
She then had no further complaints relevant to her back injury that she brought to my attention until her accident on 6th September 1994.
At her first examination on 12th September 1994 she had a slightly reduced straight leg raising on the left with a positive slump and positive sciatic stretch test. Her back ached with prolonged use, stiffened with inactivity, caused difficulty with intercourse and caused lancinating pains at night occasionally. On review on 25th October 1994 she was still having pain radiating to the left foot and had clear S1 dermatone impaired sensation and probable slight weakness of foot movements. At this stage she had CT scans and was referred to Mr Hunn.”
In her particulars the plaintiff complains that since the incident she has suffered from low back pain, stiffness, muscle spasms, left leg pain with pins and needles and “sharp shooting” right leg pain extending from her back. The plaintiff, who is now aged 50, says that the symptoms attributable to the incident have significantly curtailed her previously active lifestyle, caused depression and destroyed her earning capacity. The claim is in the order of $500,000.
By its defence the defendant has denied that the symptoms are attributable to the incident. In light of the history of back problems causation is very much an issue.
The interrogatories in question are numbered 8 to 28 and are directed to causation. Interrogatory 8 concerns the plaintiff’s pre-incident symptoms. Interrogatories 9 to 24 deal specifically with post-incident symptoms and any correlation with pre-incident symptoms. Interrogatories 25 to 28 deal with the medical treatment and investigation of the plaintiff’s pre-incident symptoms. The objection is the same for each interrogatory, namely, that it is:
“… fishing, oppressive, to (sic) widely drawn and seek(s) particulars previously provided by particulars of claim dated 5th March 2003”.
The “fishing” objection was not pursued.
Interrogatory 8 is as follows:
“Prior to the date had you ever suffered any of the following in your lower back or right leg or left leg or any, and if so what, combination of those – namely pain, discomfort, injury – when:
(a) bending your back;
(b) twisting your back;
(c) lifting something;
(d) reaching for something.”
Counsel for the plaintiff submitted that this interrogatory was so widely drawn as to be oppressive. It was submitted that the oppression arises because the enquiry extends back beyond the year identified in the particulars giving a previous history of back problems, namely, approximately 1991. There was no suggestion that it was oppressive for other reasons.
In White & Co v Credit Reform Association and Credit Index Ltd (1905)1 KB 653, Mathew LJ said at 660:
“With regard to the second interrogatory, it appears to me to be obviously oppressive. I see no reason to suppose that it would benefit the plaintiffs to any extent which could countervail the inconvenience which it would occasion to the defendants. In order to answer it the defendants might have to enter into an almost interminable inquiry as to what their various agents might have done in the matter and there does not appear to me to be any sufficient ground shewn for subjecting them to such an oppressive requirement. I therefore think that this interrogatory should be disallowed.”
The interrogatory essentially is confined to back or back related problems in the past attributable to activities similar to those undertaken by the plaintiff at the time of her injury. It is not obvious and no information was presented to the effect that requiring an answer would impose upon the plaintiff any great difficulty, expense or inconvenience. It may be that the events of pain and discomfort enquired after are few and far between and well recollected so as to impose no difficulty or inconvenience in providing answers. I have no reason to suppose that the interrogatory is of such limited benefit to the defendant that requiring an answer is unreasonable.
Under the Rules interrogatories may be administered without leave as to the matters authorised by r406. Under r409 it is then for the party to whom the interrogatories are administered to answer, object, or apply to have the interrogatories disallowed. The reasons for the objection should be set out in concise form and verified by affidavit as required by r409. A relevance or fishing objection can be determined by reference to the pleadings and so no evidence or elaboration is required. It is sufficient to simply state the objection because the nature of the objection is such that the reason for it is disclosed by the objection itself. In contrast, however, where oppression is asserted and the oppression is not obvious, the reasons for the objection need to be set out and verified by affidavit. In that way the opponent is afforded an opportunity of understanding why objection has been taken and if there is a dispute the Court has an evidentiary basis for its determination. Here the interrogatory is not obviously oppressive and there is no material in the verifying affidavit or otherwise demonstrating the oppression and, accordingly, there is no sufficient basis for the objection to be sustained. There will be an order that interrogatory 8 be answered.
The sixteen interrogatories numbered 9 to 24 deal with four specified classes of symptoms, namely, lower back symptoms, left leg symptoms, right leg symptoms and groin symptoms. Although the plaintiff has made no complaint of groin symptoms it was an agreed fact for the purpose of the hearing of this application that groin pain can be a symptom of low back injury. In respect of each of the four symptoms, four questions are asked and the four questions are drafted in the same form for each of the four symptoms. Accordingly, I need refer in particular to only interrogatories 9, 13, 17 and 21 which are as follows:
“9Since the date have you had pain in any and if so what part of your lower back.
13Since the date have you had any and if so what altered sensation (other than pain) in your back.
17If the answer to interrogatory 9 is ‘yes’ then:
(a)state whether the pain has been constant or whether it has varied in any and if so what way and why;
(b)state to what you attribute any such change;
(c)is that pain in the same area as any pain experienced by you prior to the date and if so then state when you had such previous pain.
21If the answer to interrogatory 13 is ‘yes’ then:
(a)state whether the altered sensation has been constant or whether it has varied in any and if so what way and why;
(b)state to what you attribute any such change;
(c)is that altered sensation in the same area as any altered sensation experienced by you prior to the date and if so then state when you had such previous altered sensation.”
The submission on behalf of the plaintiff is that each of these interrogatories seeks particulars on oath and that subparagraphs (a) and (b) of interrogatories 17 and 21 and their equivalents seek opinions. The latter matter is not stated in the verifying affidavit as a ground of objection, but the plaintiff may raise it anyway under r410(3): Royal & Sun Alliance Assurance Australia Ltd v Falzon [2002] TASSC 52.
As to the point about particulars counsel for the plaintiff referred to Soloduch v Shiels (1997) TASSC 78, where Crawford J said:
“Interrogatories which seek no more than verification of particulars on oath deserve to be disallowed in most cases because they are unnecessary. Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221.”
In my view, this is not a case where the interrogatories seek “no more” than verification of particulars on oath. It may be that requiring answers would have to some degree that incidental effect, but it is clear from the nature of the dispute that the interrogatories are directed to the issue of causation. The plaintiff by delivering particulars is stating the matters which she wants taken into account in the assessment of her damages and not purporting to provide a complete relevant medical history. The defendant, unless the Court is persuaded otherwise, is entitled through the process of interrogation (as well as discovery of documents and the right to require the plaintiff to submit to medical examination and provide to the doctor upon request all necessary information) to obtain the best relevant medical history which it can short of causing oppression. This is what the defendant is trying to do here and it is not a case where the defendant is doing no more than seeking particulars or their verification on oath.
As to subparagraphs (a) and (b) of interrogatories 17 and 21 and their equivalents, it may be that the plaintiff is able to answer from knowledge or it may be that she can only express an opinion which she is not qualified to give and which she can only give by consulting an expert and repeating the expert’s opinion. For example, if the plaintiff’s back pain increases with certain physical activities and disappears or decreases with rest and relaxation she could state as much from knowledge. If, however, providing an answer requires the acceptance of the expert opinion of others the interrogatory is objectionable. Here, the plaintiff has not said in her affidavit taking objection to the interrogatories that they require the expression of an expert opinion and it is not self-evident that expert opinion is being called for. As O’Loughlin J said in Kadlunga v Electricity Trust (1987) 43 SASR 313 at 319:
“It is not for the judicial officer (either the Master in the first instance or a Judge on appeal) to assess whether expert knowledge or expert opinion is required to answer a particular interrogatory unless, as was the case in Rofe v Kervorkian (1936) 2 All ER 1334, it is obvious that the nature of the question is such that only an opinion can be expressed in answering it. Elsewise, it is for the interrogated party to dispute the particular interrogatory by saying that he is entitled to refuse to answer the question on the ground that it requires the expression of an expert opinion.”
There will be an order requiring answers to interrogatories 9 to 24, however, that order should not be taken as precluding the plaintiff, insofar as any expert opinion might be called for, from stating that she is unable to further answer the question from knowledge, information or belief having made all due enquiries. As is apparent from Rofe v Kervorkian (supra) the plaintiff is not required to make enquiries of her expert witnesses in order to answer interrogatories calling for the expression of an opinion.
The sole objection to interrogatories 25 to 28 is that they are so widely drafted as to be oppressive. Interrogatories 25 and 26 deal with medical treatment and 27 and 28 deal with medical investigation, but otherwise the form is the same and so I need only specifically refer to interrogatories 25 and 26 which are as follows:
“25 Prior to the date had you received any, and if so what, medical treatment for any, and if so what, pain, discomfort, injury, altered sensation in, and if so what, part of:
(a) your lower back
(b) your left leg (including your left foot);
(c) your right leg (including your right foot);
(d) your groin.
26 If the answer to any part of interrogatory 25 hereof is ‘yes’ then state:
(a) what was the cause of the thing which resulted in you so receiving treatment;
(b) when and where did you receive such treatment;
(c) who provided such treatment.”
The reason for the objection to these interrogatories asserted by the plaintiff’s counsel is the same as the reason for the objection to interrogatory 8, in particular, that they require the plaintiff to answer for the whole of her life up until the time of injury. The plaintiff has not said that answering the interrogatories would put her to great difficulty, trouble, expense or inconvenience and it is not obvious that requiring answers will have that effect. I have no reason to suppose that the interrogatories are of such limited benefit to the defendant that requiring answers is unreasonable. The reasons for the objection have not been set out as required by r409, nor otherwise demonstrated on an application to disallow the interrogatories under r410(3). Accordingly, for the reasons which I expressed in relation to interrogatory 8, answers will be ordered for interrogatories 25 to 28.
There will be an order that the plaintiff answer interrogatories 8 to 28 of the defendant’s interrogatories administered 10 June 2003.
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