Biskup v Graham No. DCCIV-98-436 Judgment No. D108

BISKUP v GRAHAM
[1999] SADC 108

Civil
Judge Kitchen

This is an appeal against an order of a master made on 29th April 1999 granting leave to the respondent, the defendant in the action, to interrogate the plaintiff, the appellant in the action. For convenience I will refer to the parties as plaintiff and defendant respectively. The interrogatories, which the plaintiff is required to answer pursuant to the master’s order, are numbered 3 to 16 inclusive in the proposed interrogatories exhibited to the affidavit of Darren John Blight sworn on 27th August 1998.
The plaintiff’s action against the defendant is for damages for injuries he allegedly suffered on 23rd September 1995 when a motor vehicle being driven by the defendant, and in which the plaintiff was riding as a passenger, rolled over in the vicinity of Monarto and Balhannah. The plaintiff alleged that the roll‑over was caused by the negligence of the defendant.
In his defence the defendant admitted the event of roll-over, the place and date of it and that it was caused by his negligence but he denied, or alternatively put in issue, the injuries, loss and damage the plaintiff claims to have suffered. The action therefore would ordinarily proceed for an assessment of damages. However, those aspects of the defence are secondary to the defendant’s principal plea which is that pursuant to the Commonwealth Safety and Rehabilitation and Compensation Act 1988 (“the Act”) the plaintiff’s action for damages is statute barred.
Section 44 and 45 of the Act provide, in effect, that an action for damages by a person employed by a Commonwealth authority does not lie against an employee of that (or another) Commonwealth authority if that persons injury was sustained in the course of his or her employment by the Commonwealth authority, unless before any amount of compensation is paid pursuant to ss.24, 25 or 27 of the Act to that person in respect of the injury, he or she has elected in writing to institute an action for non-economic loss against the employee.
The defendant alleges that the plaintiff’s injuries suffered in the roll-over event occurred in the course of his and the defendant’s employment by Australian National Railways (ANR), a Commonwealth authority, and that the plaintiff received compensation pursuant to the Act. It is not expressly stated but I infer that it is alleged the compensation was paid for the injuries the plaintiff allegedly suffered in the accident.
Interrogatory number 3 is directed at the time and location of the accident, Interrogatories numbers 4 to 6 inclusive are directed to details of the plaintiff’s work duties with ANR on 23rd September 1995 and the place or places they were, or were to be, performed. Interrogatories 7 to 12 inclusive are directed to by whom transport was provided for the plaintiff on 23rd September 1995, from where and to whence the plaintiff was travelling at the time of the accident, the route taken and any interruption to the journey. Interrogatories 13 and 14 are directed at any report of the accident by the plaintiff to ANR, the date of it and to whom it was made. Interrogatories 15 and 16 are directed at the amount, date of receipt and nature of compensation received by the plaintiff from ANR as a consequence of the accident and whether, and when since the accident, the plaintiff has elected in writing to institute an action against the defendant for damages for non-economic loss.
In Pearce v Hall (1989) 52 SASR 568, when dealing with the then rules of this Court, which required leave to administer interrogatories in what I will call personal injury cases, King CJ, with whom Mohr and Prior JJ agreed, said (at p.574):-
“Each application for leave to administer interrogatories or for an order that a party answer interrogatories must be considered on its individual merits”.

and adopted Judge Lunn’s formulation and discussion in Barber v Nominal Defendant (1989) 153 LSJS 8 of the matters relevant to the decision whether or not to grant leave. King CJ also referred with approval to Judge Lunn’s view that while a plaintiff may face a non-suit if he cannot prove a material fact other than through the evidence of the defendant, and if so he should be given leave to interrogate, different considerations usually apply to a defendant for he has the right to cross-examine the plaintiff and his witnesses before presenting his own case at trial, and if defendants “need the evidence of the plaintiff or his witnesses to plug a gap in the defence case they would not normally need to interrogate to achieve this”. Further, the over-all observation of Judge Lunn that because of the general availability of other interlocutory processes and means of obtaining evidence “it should only be in fairly exceptional circumstances that any need for interrogatories should arise once these other avenues have been properly explored” was also expressly adopted by King CJ.

Now, of course, the rules provide that in every case the leave of the court is required to deliver interrogatories; Rule 57.01. The master, correctly in my view, referred to both Pearce v Hall and Barber v Nominal Defendant as containing the principles which should guide him in considering this defendant’s application.
The principal defence advanced by the defendant is that the plaintiff’s action is barred by the Act. It is not articulated as clearly or materially as it might be and the criticisms made by Mr Frayne in that connection in his submissions on the appeal have some substance. Nonetheless, it is apparent to me that the plaintiff is clearly and acutely aware of the defendant’s case namely that the plaintiff suffered his alleged injuries in the course of his employment with ANR due to the negligent acts of the defendant in the course of his employment with the same employer.
The defendant in preparation of his case obtained a copy of the plaintiff’s injury report to ANR dated 5th October 1995 which appears to relate to the incident the subject of this action against the defendant. The plaintiff was given notice to admit “the authenticity and admissibility” of that document; he responded that he “admits the authenticity and admissibility (of the document) but not the accuracy of any or all of its content”. The document purports to report, inter alia, that at the time of the accident the plaintiff was working “ordinary time” and at the time of the accident he was “travelling to/from work”.
The defendant also gave to the plaintiff a notice to admit a report by Dr Geoffrey Jose in which there is a description of the circumstances of the accident, apparently given by the plaintiff; the description is brief and includes “(the plaintiff) was being driven to Balhannah where he used to leave his car, either at Balhannah or Handorf, to be picked up and taken on to work”. In his response to the notice the plaintiff admitted the authenticity of the report but not, for various stated reasons, its admissibility.
Further in a response to a notice to admit facts the plaintiff admitted that on 23rd September 1995 he was an employee of ANR but stated the accident on that day “did not occur during the course of employment”.
In Mendez v Telstra Corporation Ltd ([1998] NSWSC 504 (22 October 1999) unreported) the New South Wales Court of Appeal held that the phrase “in the course of ... employment” in s.44 of the Act requires that there be a temporal connection between the injury and the employment and an injury suffered by an employee while travelling between his or her place of residence and place of work did not mean, having regard to s.6 of the Act, that the injury was suffered in the course of employment.
Mr Frayne submitted that the defendant, being the driver of the vehicle which overturned causing injury to the plaintiff, is, or is to be assumed to be, as well acquainted as the plaintiff with the events and circumstances which preceded that incident, and as those events and circumstances make up a substantial part of the interrogatories leave to administer them should not have been granted.
In my opinion, the object of a substantial group of the interrogatories is not to solely ascertain matters as to which the defendant has either not explored some other avenue to discover the evidence he seeks, or he should be taken to know of his own knowledge. What the defendant seeks, inter alia, is evidence from the plaintiff of the plaintiff’s activities on the day of the accident, and the purpose of them, as an incident of, or associated with, his employment by ANR. In my view, the nature of those topics brings this case within the group which satisfy the description referred to in Pearce as exceptional. The plaintiff’s answers may be evidence to show that his claim is barred. On the whole the interrogatories are not discursive or prolix (Barbarian Motorcycle Club v Koithan (1984) 35 SASR 481) and they do serve the purpose of the proper function of interrogatories which King CJ in Barbarian at 483 described thus:-
“Interrogatories are a species of pre-trial discovery of facts. Their function is to enable a party to obtain from the opposite party admissions or evidence of material facts to be adduced at the trial or to appraise the strength or weakness of the case before the trial and thereby to assist in the fair disposal of the proceeding at or before the trial or in saving costs: ...”
Mr Frayne submitted that the allegation in the defence that the accident “occurred during the course of the plaintiff’s and the defendant’s employment with ANR” asserts a matter of mixed fact and law, it does not plead a material fact and therefore the interrogatories are wholly inappropriate and entirely misconceived in that they are not directed to material facts in issue on the pleadings. It is submitted that the defendant should have pleaded material facts to particularise the allegation that the accident occurred in the course of the plaintiff’s employment.
No reply was filed to the defence and therefore there was a joinder of issue upon the allegation in the defence.
Interrogatories are not allowed on matters involving questions of law. Drew v Drew (1917) SALR 286.
In Neptune Oil Co Pty Ltd v Fowler (1964) NSWR 251 the plaintiff, in an action to enforce a guarantee, demurred to pleas by the defendant that the plaintiff was a money-lender within the meaning of the Money-lenders and Infants Loans Act. If that were established the defendant’s promise was unenforceable. In its judgment the Court of Appeal wrote (at page 257):-
“It is submitted that that allegation is insufficient, if true, to establish what it alleges. As a proposition that is difficult to follow. It is certainly a very courageous submission, to say the least of it, for it attacks a modus operandi that has been accepted as valid pleading by courts of common law for over 100 years. It is said that it is an allegation of law; but that is clearly wrong. An allegation in a pleading is an allegation of law only if its truth depends upon the answer to a question or questions of law; it is an allegation of fact if its truth depends upon the answer to a question or questions of fact ... (But) the truth of the allegation that the plaintiff was a money-lender within the meaning of the Act depends upon the answer to a question of fact; for example whether its business was that of money-lending.”
Accepting that principle, the plea that the roll‑over event “occurred in the course of the plaintiff’s and the defendant’s employment with ANR” is an allegation of fact, not of law or mixed fact and law.
However, if I am in error in that view, I would still allow the interrogatory on the ground that it can and should be interpreted to mean that the activities the defendant inquires into are those performed by the plaintiff as an incident of or associated with his employment with ANR.
A pleading, including a defence, must contain a statement in summary form of the material facts upon which the plaintiff relies and contain sufficient particulars of the defence pleaded; Rule 46.04(1)(b) and (f). In his principal defence the defendant has pleaded, in purported compliance with Rule 46.12(4)(a) and (b), facts or matters which might make the claim of the plaintiff not maintainable or which if not specifically pleaded might take the plaintiff by surprise. The plaintiff has not applied under Rule 46.18(b) to strike out the defence on the ground it does not comply with the Rules as to pleadings and neither has he sought a more explicit defence pursuant to Rule 46.20, from which it should be inferred that he understands the defendant’s case in that respect.
In these circumstances the submission that the interrogatories numbers 5 and 6 do not address a fact or facts in issue, or that they should not be allowed until the defendant particularises the plea or that they seek from the plaintiff “an ultimate conclusion” cannot be sustained.
In his submission, Mr Blight for the defendant, recognised the difficulty in interrogatories 5 and 6 if the phrase “in the course of employment” is a mixed question of fact and law. He argued it does not have that complexion but proffered the deletion of the phrase from interrogatories 5 and 6 if his argument is not accepted. If the defendant out of an abundance of caution prefers to delete the phrase “in the course of your employment with” and substitute “by” he will be permitted to do so.
I turn to deal with Mr Frayne’s submissions as to each of the interrogatories.

Number 3

This seeks the time and location of the accident. It is argued that on the pleadings the time has not been raised as an issue and in any event the defendant, being the driver of the vehicle, must know each of those matters. In my opinion, the plaintiff’s qualified response to the notice to admit the report to ANR and his negative response to the admissibility of Dr Jose’s report, is sufficient basis to allow this interrogatory.

Number 4

This asks the plaintiff to state the nature of his usual work duties on a typical shift with ANR on 23rd September 1995. It is objected that this is not relevant to the topic of a temporal connection between the accident and the plaintiff’s employment and in any event the defendant could obtain the information from ANR. In my view, the plaintiff is being asked what he did in his employment not what he might have been specifically engaged, or instructed, to do by his employer and the questions are relevant and appropriate in the circumstances of the issues in this case.

Numbers 5 and 6

In addition to the submissions I have already dealt with in relation to these interrogatories the plaintiff urged that the topics of the interrogatories are irrelevant on the issue of a temporal connection between the accident and the plaintiff’s employment. I reject that. It seems to me that the decision in Mendez’ case makes these questions relevant and appropriate on the defendant’s plea that the accident occurred in the course of the plaintiff’s employment with ANR.

Number 7

The objection is that the defendant knows the answer to this topic of his own knowledge because he was the driver of the vehicle. Again, in my view, the knowledge of the plaintiff is relevant and appropriate to the issue of “course of employment” raised by the defendant.

Number 8

Except for interrogatory 8.5, and for the reasons given in relation to interrogatory 7 this will be allowed. Interrogatory 8.5 questions the plaintiff about the defendant’s habits and requires the plaintiff to adopt an implicit but unstated assumption ie that the plaintiff commonly travelled with the defendant on a particular route. But I will hear the defendant upon whether it can be cured by some minor amendment. Unless altered interrogatories 9, 10 and 11 fall with interrogatory 8.5

Number 12

Except that this interrogatory enquires where the plaintiff and the defendant were travelling to, it is relevant and allowable on the issue raised by the defence. Consistent with interrogatory 8 it should be limited to the plaintiff and the words “and the defendant” will be deleted.

Numbers 13 and 14

These are relevant and allowable and arise, not insubstantially, from the plaintiff’s response to the notice to admit documents.

Numbers 15 and 16

These interrogatories are directed at ascertaining the compensation and the nature of it which the plaintiff has received under the Act in respect of the accident. On the issue raised by the defence they are relevant but the plaintiff urges that the defendant could or should seek the information from ANR. The defendant already has information on some of the topics. On 15th June 1998 the defendant obtained an order that ANR disclose to the defendant records held by it concerning the plaintiff, in relation to the accident on 23rd September 1995, including, inter alia, “employment records and compensation Comcare records.” In the affidavit in support of the application for leave to deliver interrogatories it was deposed, inter alia, that the information, the topics of the interrogatories, had not been obtained “through other means, including discovery and Rule 46.15 Particulars.” It appears that was not challenged before the master; it was not seriously challenged on appeal. In my view these interrogatories are appropriate and were properly allowed.

Generally

Rule 97.01 provides that an appeal from a master pursuant to s.43(2) of the District Court Act “shall be by way of re-hearing and in matters involving the exercise of a discretion the judge may exercise his own discretion without regard to the manner in which it was exercised in the decision, order or direction appealed against”.
Substantially, for the reasons I have given, the master’s order was correct but in respect of the variations that I would make to that order I have exercised my own discretion.
Subject to the defendant applying to amend (upon the topics I have indicated) the interrogatories ordered by the master, the appeal is allowed by varying the order of the master to:-
delete interrogatories 8.5, 9, 10 and 11.
delete from interrogatory 12 the words “and the defendant”.

[1999] SADC 108

10 August 1999