Axelby v Higgins

[2022] ACTSC 268

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Axelby v Higgins

Citation:

[2022] ACTSC 268

Hearing Date:

30 September 2022

DecisionDate:

30 September 2022

Before:

Elkaim J

Decision:

(a)    Interrogatories 1–8, 10–12, 19–20 are allowed.

(b)    Interrogatories 9 and 13–18 are rejected.

(c)    The costs of the application are to be costs in the cause.

Catchwords:

CIVIL LAW – APPLICATION – Orders sought that plaintiff answer interrogatories – whether interrogatories are relevant to matters in issue

Parties:

Daniel Axelby ( Plaintiff)

Timothy William Higgins ( First Defendant)

AAI Limited Trading as GIO ( Second Defendant)

Representation:

Counsel

W Sharwood ( Plaintiff)

J Dempster (First and Second Defendants)

Solicitors

Sneddon Hall & Gallop ( Plaintiff)

Moray & Agnew Lawyers ( Defendant)

File Number:

SC 112 of 2022

Elkaim J:

1. This matter arises from a motor vehicle accident in which a vehicle driven at high speed left the road and resulted in injuries to all occupants of the vehicle. One of those occupants is the plaintiff and he has sued the driver and the driver’s insurer for damages arising from his injuries.

1. The defendants, mainly the driver and the insurer, wish to issue interrogatories to the plaintiff in support of their allegation of contributory negligence. Primary negligence has been admitted. One of the purposes for which interrogatories can be issued is to assist a party making an assertion. In this case, the defendants assert that the plaintiff did not tell the second defendant to slow down the vehicle.

1. The proposed interrogatories have already been sent to the plaintiff, and to a minor degree have been answered, over a number of topics some of which in my view are relevant and some of which are not. The plaintiff objects to the bulk of them because they either raise an issue of credit or are irrelevant.

1. The circumstances of the vehicle and who was in it is relevant to establishing the scene in the vehicle at the time the defendants assert the act of contributory negligence, essentially failing to tell the driver to slow down, occurred. Interrogatories 1–5 should be answered.

1. In relation to interrogatories 6–12, these concern the plaintiff’s consumption of alcohol. In my view, the consumption of alcohol is relevant to whether or not he had the capacity to make any assessment about the goings on inside the motor vehicle. I do not, however, think interrogatory number 9 is of any use. In fact, I think it is a very strange question. I am going to allow interrogatories 6–12 except for number 9.

1. In relation to 13–16, I do not see any relevance in the consumption of alcohol of another passenger going to whether or not the plaintiff should have warned the second defendant of his manner of driving. I also note the other passenger has not been spoken to by the defendants and I wonder whether that would be the appropriate measure to take. I do not allow interrogatories 13–16.

1. Interrogatory 17 goes to whether or not the plaintiff knew that the driver was on a provisional license. It is not asserted that the plaintiff was contributorily negligent because he drove in a vehicle with an inexperienced driver. I do not see the relevance of that question.

1. Interrogatory 18 asks for the relevant speed limit on Bowen Drive, Barton ACT. I would have thought the defendants would know the answer to that question. I do not see the relevance.

1. Interrogatories 19–20 relate to the issue at hand, being the speed that the Hyundai was travelling, which would in turn raise the issue of whether or not it was appropriate to impose an obligation upon the plaintiff for his own safety to tell the second defendant to slow down. Interrogatories 19–20 are relevant.

1. I make the following orders:

(a)Interrogatories 1–8, 10–12, 19–20 are allowed.

(b)Interrogatories 9 and 13–18 are rejected.

(c)The costs of the application are to be costs in the cause.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: