Bakaimis v Health Care Marian Centre Pty Ltd [No 2]
[2017] WADC 130
•29 SEPTEMBER 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BAKAIMIS -v- HEALTH CARE MARIAN CENTRE PTY LTD [No 2] [2017] WADC 130
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 26 JULY 2017
DELIVERED : 29 SEPTEMBER 2017
FILE NO/S: CIV 3515 of 2016
BETWEEN: DANIELLE JANE BAKAIMIS
Plaintiff
AND
HEALTH CARE MARIAN CENTRE PTY LTD
Defendant
Catchwords:
Application to strike-out - Application for further and better answers to interrogatories - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971 O 27 r 4, O 27 r 7
Result:
Application allowed in part
Representation:
Counsel:
Plaintiff: Mr A Stewart
Defendant: Ms W Pettingill
Solicitors:
Plaintiff: Chapmans
Defendant: SRB Legal
Case(s) referred to in judgment(s):
PRINCIPAL REGISTRAR MELVILLE:
Background
On 1 May 2017 the plaintiff was ordered to file and serve further and better particulars in respect of a number of allegations made in her statement of claim. Relevantly to this application, the plaintiff had been required to provide particulars of par 11(n) found under the heading 'Particulars of Breach of the Common Law Duty', and particulars of par 11(b) found under the heading 'Particulars of the OSH Statutory Duty'. The plaintiff had also been ordered to provide answers to a number of interrogatories.
The defendant has now brought an application seeking to strike out those two particulars on the basis that the plaintiff has failed to comply with the order and for further answers to interrogatories 14 and 18.
Particulars
Paragraph 11(n) under the heading 'Breach of the Common Law Duty' alleged that the defendant had been negligent insofar as it 'failed to put in place a system to ensure that it did or avoided doing those things specified in paragraphs 11(a) to (k) above'.
Particular 11(b) under the heading 'Particulars of the OSH Statutory Duty' allege that the defendant '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 OSH Act'.
The defendant had sought further and better particulars of the 'systems' referred to in 11(n) and further and better particulars of the 'plant and systems of work' the plaintiff referred to in par 11(b).
On 1 May 2017 the plaintiff was ordered to provide those particulars. However, she did not provide particulars of par 11(b) under the heading 'Particulars of the OSH Statutory Duty' and in respect of par 11(n) under the heading 'Breach of Common Law Duty' answered, after the defendant had issued its summons, as follows:
2.10The systems the Defendant failed to put in place are as follows:
(a)a system that would prevent the Plaintiff from carrying out the first task in the manner required, particularly in circumstances where there was a no lifting patients policy;
(b)a system that would ensure the Plaintiff was warned of the risks involved in carrying out the first task in the manner required;
(c)a system that would prevent the Plaintiff from being directed to perform the first task in the manner required, particularly in circumstances where there was a no lifting patients policy;
(d)a system that would ensure the no lifting patients policy of the hospital was enforced;
(e)a system that would ensure that patient 1 was adequately monitored while he was in the hospital's care, including by ensuring Patient 1 was kept on special observation;
(f)a system that would ensure adequate information was communicated to the Plaintiff and the hospital staff as to the appropriate care that was required for Patient 1;
(g)a system that would ensure an adequate history of patient 1 was provided to the Plaintiff and the hospital staff, including a system that would ensure there were adequate post review notes in Patient 1's file;
(h)a system that would ensure that the hospital communicated to the Plaintiff and the hospital nurses that patient 1 was in a chronically suicidal state, through the patient's progress notes or otherwise;
(i)a system that would ensure that Patient 1 was identified as needing to be on special observation, in the period leading up to and on the material date;
(j)a system that would ensure that the hospital's general policy of having a patient stay for a maximum period of two weeks was enforced with respect to Patient 2;
(k)a system that would ensure that complaints made by the Plaintiff regarding Patient 2 as to the risk she posed to other patients and the hospital nurses by means of frequent pseudo-seizures and collapses would be received and actioned;
(l)a system that would ensure the Plaintiff was prevented from carrying out the second task in the manner required;
(m)a system that would warn the Plaintiff of the risks involved in carrying out the second task in the manner required, particularly in circumstances where it knew, or ought to have known, that Patient 2 posed a risk to the hospital nurses by means of frequent pseudo-seizures and collapses.
A perusal of these particulars brought to mind the expression 'better informed but none the wiser'. In essence, it is my view these answers do not particularise the 'system'. What they do, is state what the plaintiff alleges would have been the result had there been implementation of the still unspecified and un-particularised and largely unknown system. I say largely unknown because it seems to me that at a stretch and with an excess of generosity it might be said that specifying the results that flow from a system goes some way toward identifying or particularising the 'system'. However, the answers are unhelpful and even more so given the results of the unspecified, particularised and unknown 'system' are already pleaded in par 11(a) to par 11(m). These results were known when the order for further and better particulars of the system was made.
As things stand, the defendant is not in a position to be able to defend itself against these vague allegations.
One possible inference is that the plaintiff has not provided further and better particulars of the system because she cannot do so. If that were the case, I would be inclined to strike-out par 11(n) and par 11(b). On the other hand, another possible inference is that the plaintiff has failed to understand the nature of the request. In these circumstances I am not inclined to draw either inference but rather, am inclined to give the plaintiff another chance to remedy the problem, if she can, and so order that par 11(n) and 11(b) be struck out unless within 14 days the plaintiff file further and better particulars of the plant and system of work that she alleges the defendant failed to implement in respect of the particulars of negligence pleaded at par 11(a) to (n) of the statement of claim.
Interrogatories
The defendant seeks further and better answers to interrogatories 14 and 18.
Interrogatory 14
In respect of interrogatory 14 it is conceded that the plaintiff has failed to address the period October 2009 to March 2010 and there is no argument against an order being made requiring the plaintiff to answer this interrogatory.
Interrogatory 18
By this interrogatory the plaintiff was required to state her gross and net income for the financial years ending 30 June 2009 through to 30 June 2013. In response to the order that she provide an answer to this interrogatory she subsequently filed an affidavit in which she said 'I cannot recall precisely what I received in gross net income and can only refer back to what was stated in my tax returns in these years'.
By way of explanation from the bar table her counsel said there was no issue with providing an answer to these interrogatories but, information was not then available and it was a question of timing. More particularly, it seemed that the plaintiff did not have at that time access to the relevant tax returns.
By the Rules of the Supreme Court 1971 O 27 r 4, it is provided that statements and answers to interrogatories must answer the substance of the interrogatory without evasion. By O 27 r 7, it is open to the defendant to apply to the court for an order requiring the plaintiff to provide further answers where the existing answers are insufficient. It can sometimes be a difficult task in determining whether an answer is sufficient or evasive and the line between compliance and non-compliance can be fine and difficult to see. The task of addressing the question as to whether the answer is evasive or insufficient is assisted by having regard to the precision, or lack thereof, in the interrogatory being administered. It is relevant also to have regard to the sources of information that are or might be available to the plaintiff and the surrounding circumstances which shed light on the sufficiency of the answer.
In this case, the plaintiff has been interrogated in 2017 in respect of her net and gross earnings as far back as 2009. That calls for extraordinary powers of recall. It seems highly unlikely that the plaintiff, or for that matter anybody, could precisely recall what their net and gross earnings were in the previous financial year, let alone for a period of some five to nine years extending back to 30 June 2013 to 30 June 2009. Further, the interrogatories on the face of them do not ask the plaintiff to provide an estimate of those earnings or to express an opinion as to what those earnings were. In my view, the defendant carries the burden of demonstrating that the answer is either evasive and/or insufficient in order to justify the making of the order it seeks. In my view, the defendant has failed to discharge that burden.
Accordingly I would order that the plaintiff provide further answers to interrogatory 14 only.
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