Bakaimis v Health Care Marian Centre Pty Ltd
[2017] WADC 57
•1 MAY 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BAKAIMIS -v- HEALTH CARE MARIAN CENTRE PTY LTD [2017] WADC 57
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 29 MARCH 2017
DELIVERED : 1 MAY 2017
FILE NO/S: CIV 3515 of 2016
BETWEEN: DANIELLE JANE BAKAIMIS
Plaintiff
AND
HEALTH CARE MARIAN CENTRE PTY LTD
Defendant
Catchwords:
Further and better particulars - Interrogatories - Objections to interrogatories
Legislation:
District Court Rules 2005 r 47
Result:
The defendant partly successful in obtaining orders for further and better particulars and partly successful in obtaining orders for answers to interrogatories
Representation:
Counsel:
Plaintiff: Mr A Stewart
Defendant: Ms B Cizeika
Solicitors:
Plaintiff: Chapmans
Defendant: SRB Legal
Case(s) referred to in judgment(s):
Barkley Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Frost v Brook (1895) 32 LT 312
Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Hinnen v Mitchell Erectors Pty Ltd [1999] WADC 54
Marich v IHI Engineering Australia Pty Ltd [2013] WADC 19
PRINCIPAL REGISTRAR MELVILLE: The defendant by way of chamber summons dated 8 February 2017 seeks orders requiring the plaintiff to provide further and better particulars of its statement of claim and to provide answers to a number of interrogatories. The plaintiff has objected to providing further and better particulars on the basis that the statement of claim contains all that is necessary. At the commencement of submissions the Court was advised the defendant withdrew its application for orders requiring the plaintiff to provide further and better particulars in accordance with request number one.
The plaintiff has also objected to answering the interrogatories in question on the basis that the request is unreasonable, and/or oppressive, or unnecessary, and would be adequately dealt with by way of discovery.
Further and better particulars
In determining whether the objections taken to providing further particulars are justified, it is necessary to consider the purposes of pleading. In this regard I can do no more can quote the words of Isaac and Rich JJ in Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490, 517:
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness· can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict, them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
In Barkley Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 [4] Martin CJ said:
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
Against that background it is necessary to consider what is alleged in the statement of claim and particulars that the defendant seeks. Given Martin CJ's statement that the court should be reluctant to allow the time and the resources of the parties and the limited resources of the court to spend extensively debating the application of technical pleading rules, it is my view that reluctance should result in a refusal to make orders for further and better particulars where they serve no useful purpose.
Having regard to the statement of claim as a whole, in my view it is reasonably clear that the plaintiff's case is that she suffered a psychological injury, neck injury, right shoulder injury, right arm injury and right hand injury as a result of one accident constituted by three incidents that occurred on 4 October 2014 in the course of her employment with the defendant. Those incidents were:
(a)the experiencing of pain in her neck and right shoulder when lifting patient (1) from the floor of the shower stall to the adjoining room. Patient 1 was at the time having CPR performed on him after having committed suicide.
(b)the experiencing of pain down her neck and right shoulder when whilst assisting patient 2 (who was prone pseudo-seizures) to a stretcher, she was required to take that patient's full body weight;
(i)when the patient dropped; and
(ii)when subsequently pulling the patient to her feet and onto the stretcher.
(c)the informing of the plaintiff at a debriefing that patient 1 had been chronically suicidal and had been threatening to commit suicide in the period leading up to this day.
The plaintiff goes onto allege that the accident was caused by the negligence and/or breach of the occupational safety and health statutory duty and/or breach of an employment contract with the defendant. To this point, the case brought against the defendant is easy to understand and should present no difficulty to the defendant as it goes about taking steps to defend itself.
At par 11(a) of the particulars of the alleged negligence, breach of statutory duty or terms and conditions of the contract, the plaintiff alleges the defendant failed to take reasonable care to avoid exposing the plaintiff to a foreseeable risk of injury whilst she was working at the hospital.
Request 2.2
The defendant sought further and better particulars of the 'foreseeable risk of injury'. However, in my view the request is unnecessary as the foreseeable risk of injury has been clearly detailed in the outline of the plaintiff's case referred to above. The plaintiff is alleging that the foreseeable risk of physical injury is in the circumstances where the plaintiff was required to lift the weight of patients and in the circumstances where she was advised that patient 1 had been chronically suicidal and threatening to commit suicide in the period leading up to the day in question. Whilst par 11(a) considered solely by itself and other than in the context of the statement of claim in which it appears, begs the question what is the foreseeable risk, when the pleadings are considered as whole the defendant, in my view, can have no difficulty in understanding what is the foreseeable risk of injury alleged by the plaintiff.
Request 2.5
This request seeks particulars of the 'foreseeable risk of injury' alleged in par 11(d). Clearly, the foreseeable risk of injury is alleged to arise out of requiring the plaintiff to lift patient 1 in the manner described. In my view the request for particulars is unnecessary.
Request 2.7
By this the request the defendant seeks particulars of the measures that the plaintiff in par 11(i) refers to when she alleges the defendant 'failed to take any or any adequate measures to protect her against foreseeable risk of injury, particularly in circumstances where they knew or ought to have known that patient (1) had been chronically suicidal in the period leading up to the material date including but not limited to:
(i) Communicating to the plaintiff and the other hospital nurses patient 1's chronically suicidal state through the patient's progress notes or otherwise; and
(ii)Identifying patient 1 as needing to be on special observation the period leading up to on the material date.
The allegation is that there was a failure to take adequate measures. The allegation goes on to particularise two measures that should have been taken but the broad allegation of the failure to take adequate measures is not limited to those two measures. The particulars are said to be 'including but not limited to' those measures.
It is apparent from that pleading that the plaintiff is bringing a case against the defendant in which it is alleging, at least impliedly, that there were measures available to the plaintiff that it ought to have taken to protect the defendant against these foreseeable risks of injury that extend beyond simply the two measures referred to in that particular, and that by failing to take those measures the defendant was negligent. However, the plaintiff does not say what those measures are and accordingly the defendant does know the nature of the case that has to meet in this regard. I will order that the plaintiff provide particulars of what further adequate measures it alleges the defendant ought to have taken that it did not take.
Request 2.10
Paragraph 11(n) to the statement of claim alleges that the defendant was in breach of its duties by having 'failed to put in place systems to ensure that it did or avoided doing those things specified in par 11(a) ‑ (k) above'.
The defendant asks for particulars of 'what systems it is alleged the defendant failed to put in place as alleged in par 11(n)'.
In my view if the plaintiff is successful in her claim based on this particular it would be necessary for the plaintiff to show that there were systems available to the defendant that it did not utilise. That is the allegation that is put. However, she does not say what systems were available to the plaintiff that it failed to adopt and by which failure resulted the defendant's breach of the alleged duties. The defendant does not know the nature of the case it has to meet. It is unfair for the defendant to have to try and meet the plaintiff's case in the middle of the trial as the evidence unfolds. I order that the plaintiff provide further and better particulars in response to this request.
Request 3.1
The statement of claim in par 11 under the heading 'Particulars of the OSH statutory duty' at (b) alleges that the defendant breached this duty in that it 'failed to provide and maintain a workplace plant and systems of work that would not expose the plaintiff to hazards as required by s 19(1)(a) of the Occupational Safety and Health Act1984. The plaintiff seeks further and better particulars of the plant and systems of work the plaintiff alleges it failed to provide. Presumably at trial the plaintiff will seek to tender evidence that demonstrates there was plant and systems of work available to the defendant that would not expose the plaintiff to hazards, but that the defendant failed to provide them. In order to prepare to defend itself, the defendant needs to know what that plant and what that systems of work were or should have been. In my view the plaintiff should be required to provide particulars of the plant and the systems of work that she alleges, and in respect of which presumably she will lead evidence, would not expose the plaintiff to hazards.
Request 3.2
By this request the plaintiff seeks particulars of what hazards the defendant failed to identify as alleged in par (c) of the statement of claim. If this particular is read in isolation to the rest of the document, it is easy to understand why the defendant would want this hazard particularised. However, if the statement of claim is read as a whole, it is clear that the hazards to which the plaintiff refers is the risk of physical injury from the lifting incidents pleaded earlier in the statement of claim and the risk of psychological injury as a result from the third incident or any combination of the three incidents referred to in the statement of claim. In my view the defendant knows what the relevant hazard is and it is unnecessary to provide further particulars.
Request 3.3
The defendant seeks particulars of the 'risk of injury or harm' that it is alleged to have failed to identify. Again, when the statement of claim is read as a whole it is clear the alleged risks are physical and psychological injury from experiencing the lifting and advice that patient 1 was suicidal. The objection is sustained.
Request 3.4
By this request the defendant seeks particulars of what 'means' it is alleged to have failed to consider. The statement of claim alleges the defendant failed to consider the means by which each risk identified under reg 3.1(a) may be reduced, as required by reg 3.1(b) of the Occupational Safety and Health Regulations 1996. Again, presumably the plaintiff will be seeking to lead evidence at trial to show there were means the defendant failed to consider, by which the risk identified may be reduced. On the pleadings the defendant has no way of knowing what means it is alleged not to have considered and it is impossible for it to properly prepare itself to defend the case being brought against it. I will require the plaintiff to answer this request for further and better particulars.
Request 3.5
By this request the plaintiff seeks particulars of the hazards, the risks of injury or harm and means it is alleged to have failed to identify or consider, by which the risk of injury may be reduced. I will required the plaintiff to provide particulars as requested for the same reason she is required to provided particulars to the request 3.4.
In my view it will require little effort for the plaintiff to provide these particulars. She is, after all, going to have to lead evidence at trial to prove these allegations. Conversely, it is going to be difficult if not impossible for the defendant to prepare to defend itself given it does not know the detail of the allegations.
Answers to interrogatories
The interrogatories that are in issue fall into two categories. The first category being interrogatories 3, 4, 5 and 9 are directed to the symptoms the plaintiff experienced from the time she suffered the injuries, the treatment of those injuries and the nature or extent of any psychological symptoms experienced by the plaintiff at any time within five years prior to the accident.
The second category of interrogatories being interrogatories 14 and 15 are directed to facts that would be relevant for assessing the plaintiff's past and future loss of earning capacity, more particularly her employment history covering the period commencing five years prior to the date of accident.
These are interrogatories that may be administered to the plaintiff without the defendant first having obtained leave to do so (r 47 of the District Court Rules 2005). However, the fact that a party may be able to serve notice to answer interrogatories without leave does not bear on the question of whether a valid objection to answering those interrogatories may be taken. The ability to serve notice to answer interrogatories on these issues is directed to, more precisely, interrogatories that 'relate to' symptoms and treatment, medical history in the five years prior to the incident and the employment history in the five years prior to the incident.
The words 'relate to' are words of broad application constrained only by the circumstances in which they are found.
Save for the following, it is my view that the interrogatories seek to elicit admissions of fact that will be relevant to the assessment of damages for pain and suffering loss of enjoyment to life, and past and future loss of earning capacity.
I find it convenient to deal with one of the grounds of objection at the outset, being that the subject matter of interrogatories will be adequately dealt with by way of discovery. The reference to discovery is a reference to discovery of documents by one party to the other.
Interrogatories serve a very different function to discovery of documents. Answers to interrogatories can be tendered as evidence in support of the interrogating party's case. However, the contents of discovered documents cannot as easily be tendered as evidence. In my view any objections grounded on the fact that information will be provided by way of discovery is relevant only to the question of whether the interrogatories are unnecessary or exceed the legitimate requirements for the occasion.
The other grounds of objection are that to answer them is oppressive, unreasonable and unnecessary.
Taking objection on the grounds that interrogatories are oppressive
Interrogatories may be regarded as oppressive if they exceed the legitimate requirements of the occasion, or place a burden on the plaintiff out of all proportion to the benefit to be gained by the defendant or are drawn so badly as to be equivocal.
Taking objection on the grounds that the answers to interrogatories are unreasonable and unnecessary
This objection really is an appeal to the court not to exercise its discretion to allow interrogatories and is closely related to a complaint that the interrogatories are oppressive.
Save for some interrogatories with which I have a problem, these interrogatories are directed to issues that might reasonably be expected to be the subject of evidence provided by the plaintiff at trial. These are issues that she is going to have to canvas with her solicitors as her proof evidence is prepared and as her solicitors prepare to form their own assessment and advice on liability and on the value of the claim. To that extent it is difficult to see that being required to answer them will put the plaintiff too much time and expense. In other words, it is my view when the proposition is looked at in that light, it cannot be said interrogatories are oppressive. Nor can it be said they are unreasonable or unnecessary. If the evidence is relevant to the plaintiff's case it is as equally relevant to the defendant's case.
Interrogatory 3
For the above reasons the plaintiff is required to answer interrogatory 3.
Interrogatory 4
I would not require the plaintiff to answer interrogatory 4.2. In my opinion the meaning of this interrogatory is next to indecipherable. I do not know how the plaintiff can be expected to helpfully describe or answer the question 'in what way symptoms have ceased or, in what way they have stayed the same'.
Interrogatory 5
Nor would I require the plaintiff to answer interrogatory 5. It is difficult to see how the name and the address of the medical practitioner can usefully be tendered as evidence by the defendant in the trial of these proceedings. In my view this interrogatory might better be regarded as a request for evidence than the admission of a material fact that is relevant to the determination of the ultimate issues. The potential work associated with trying to answer this interrogatory is oppressive. There will be many instances where a injured plaintiff attended a GP for no purpose other than getting a renewal for a prescription. To require the plaintiff to answer chapter and verse every attendance of this nature is beyond what is called for in the circumstances of this litigation. It is difficult to see how an answer to this interrogatory will advance the defendant's position at trial. Further interrogatories as to the name of the medical practitioner have been held to be objectionable Frost v Brook (1895) 32 LT 312.
Interrogatory 9
Save for interrogatories 9.1, and 9.10.1, I would require the plaintiff to answer interrogatory 9. The is ample authority for the requirement to answer questions as to the 'extent and severity' symptoms in Frost v Brook and more recently in Marich v IHI Engineering Australia Pty Ltd [2013] WADC 19 at [64] and Hinnen v Mitchell Erectors Pty Ltd [1999] WADC 54. Similarly in Frost v Brook the plaintiff was required to answer interrogatories bearing and the periods of incapacity, such as how long he had been confined to his bed, his house and his reasons for leaving his house
However, in respect of interrogatory 9.1 it is my view the interrogatory is would potentially require the plaintiff to identify every date over a 5‑year period on which she suffered symptoms of a psychological nature. That is some 1,825 dates. I find this interrogatory oppressive.
Interrogatory 9.10.1 is objectionable for the same reasons as given for upholding the objection to interrogatory 5.
Interrogatories 16 and 18
I would require the plaintiff to answer interrogatories 16 and 18. To say that the tax returns have been discovered does not really address the issues. A tax return is not likely to demonstrate whether and what periods of employment are of full‑time, part-time or casual employment or to shed much light on the capacity in which the plaintiff was employed or the average number of hours she worked each day. Further, tax returns commonly will indicate the earnings for the full financial year notwithstanding that a person may be employed only for a period of that year. Nor will tax returns reveal whether a person resigned their employment or whether they found themselves unfit to continue their employment or were dismissed from their employment due to the physical injuries the subject of the action.
In short, the interrogatories I consider should be answered I do not regard as oppressive or unnecessary. They either canvass information the plaintiff's solicitors already have or they request the plaintiff and her solicitors to undertake work they were going to have to undertake in any event. Further any admission of facts that might be made will potentially or actually assist the defendant in providing the factual basis for any opinion expressed by its medical experts and be relevant to the assessment of damages.
0
4
1