Caesar v Star Track Express Pty Ltd (Ruling No.1)
[2024] VCC 855
•13 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-01871
| Regan Caesar | Plaintiff |
| v | |
| Star Track Express Pty Limited (ACN 001 227 890) | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2024 | |
DATE OF RULING: | 13 June 2024 | |
CASE MAY BE CITED AS: | Caesar v Star Track Express Pty Ltd (Ruling No.1) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 855 | |
RULING
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Subject:REVIEW OF JUDICIAL REGISTRAR’S DECISION
Catchwords: Interrogatories – discovery
Legislation Cited: County Court Civil Procedure Rules 2018 (Vic); Occupational Health and Safety Regulations 2007 (Vic)
Ruling: Relief granted in part.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L. Allan | Arnold Thomas & Becker |
| For the Defendant | Mr A. Moulds KC Mr S. Scully | Hall & Wilcox |
HIS HONOUR:
1This proceeding is listed for trial before a jury on 26 June 2024.
The Plaintiff’s Court Proceeding
2The plaintiff at trial will be seeking an award of damages for injuries allegedly suffered while performing work tasks throughout the period of his employment from 15 May 2008 to April 2015 in the role of a freight handler. At paragraph 5 of his Statement of Claim dated 27 April 2023 he pleads that during his employment, he “was required to perform heavy, strenuous and arduous duties handling, loading and unloading, wrapping, and sorting freight, and these duties included heavy and/or repetitive lifting, pushing, pulling, twisting, carrying, bending and stretching (“the Work Tasks”).”
3Some further description of the plaintiff’s work is contained in the defendant’s answers to interrogatories made by Mr Jonathan Gray, the Corporate Lawyer of Australia Post, the parent entity of the defendant, dated 13 March 2024.
4The plaintiff claims to have suffered injuries to his neck, back and right shoulder, with consequential chronic pain, weight gain and psychological injury, due to the performance of his Work Tasks.
5The plaintiff alleges the onset of symptoms in or around late March/early April 2015.
6The Particulars of Injury refer to the plaintiff sustaining injuries to the cervical spine, lumbar spine and right shoulder, with the spinal injuries referred to as a “musculo-ligamentous strain with aggravation of degenerative changes”.[1]
[1] Statement of Claim dated 27 April 2023.
7The plaintiff is alleging negligence at common law. He is also alleging a breach of Occupational Health and Safety Regulations 2007 (Vic) (‘the Regulations’) as they pertain to hazardous manual handling. The plaintiff also alleges a breach of the terms of his contract of employment.
Standard Timetable Orders
8The Court’s standard timetable of directions was made by Judge Pillay on 30 June 2023. The orders required discovery to be completed by 8 September 2023 and interrogatories to be served by 27 October 2023. By consent of the parties, the Court, in Orders made on 20 October 2023, extended the date of service of interrogatories to 27 November 2023.
Further and Better Discovery
9The defendant filed and served a sworn affidavit of documents dated 6 September 2023.
10By letter dated 12 March 2024, the plaintiff’s solicitors wrote to the defendant’s solicitors requesting further and better discovery of the following documents:
We seek that you make further and better discovery of any documents relevant to any report of an employee, servant or agent of the defendant suffering a musculoskeletal injury said to have resulted from the manual handling of freight. For present purposes, we are happy to confine this request to the period 15 May 2003 (5 years prior to the start date of our client’s employment) to 15 April 2020 (roughly 5 years after our client ceased employment).
I note that such documents are highly relevant having regard to, for example, OH&S Regulations 2017 reg. 28(1)(c)[2] and the principles set out in cases such as Moore v Woodman [1970] VR 555. Would you please ensure that such documents are provided as soon as possible.
[2]The plaintiff’s solicitor has referred to the 2017 Regulations, however a breach of the 2007 Regulations is pleaded. The same equivalent in the 2007 Regulations is reg 3.1.3(1) which states “ An employer must review and, if necessary, revise any measures implemented to control risks under regulation 27- … (c) if an occurrence of a musculoskeletal disorder at a workplace is reported by or on behalf of an employee…”
11By email dated 18 March 2024, the defendant objected to the production of the request for further and better discovery on the following basis:
We object to the production of documents you have described on the grounds it is oppressive and does not relate to any question between the parties. We further object on the grounds that this is a fishing expedition and note that the case of Moore v Woodman [1970] VR 555 that you to rely on concerns incidents arising in respect of a specific pole. We refer to Gillard J at paragraph 578 of this judgement.
Further and Better Answers to the Plaintiff’s Interrogatories dated 7 December 2023
12On 7 December 2023, the plaintiff served interrogatories for the examination of the defendant.
13On 13 March 2024, the defendant served answers to the plaintiff’s interrogatories.
14By letter dated 22 March 2024, the plaintiff wrote to the defendant and requested further and better answers to interrogatories, 7, 8, 9, 11 and 12. The plaintiff again requested further and better discovery, on the assertion that it was highly relevant to the issues in dispute. The defendant was also put on notice that given the proximate date for trial, an application would be brought immediately but the plaintiff still invited the defendant to provide the further and better discovery requested, and further and better answers to interrogatories 7, 8, 9, 11 and 12. The defendant did not take up the plaintiff’s invitation.
Plaintiff’s Summons dated 2 April 2024
15By Summons dated 2 April 2024, supported by solicitor’s affidavit the plaintiff requested, relevantly, the following orders:
By 8 April 2024, the Defendant file and serve further and better answers to interrogatories 7, 8, 9, 11 and 12 of the Plaintiff’s Interrogatories for the Examination of the Defendant dated 7 December 2023.
By 8 April 2024, the Defendant make further and better discovery (including full inspection) in respect of any report of an employee, servant or agent of the defendant suffering a musculoskeletal injury said to have resulted from the manual handling of freight from 15 May 2003 to 15 April 2020.
Costs of and incidental to the application.
16The relief was opposed by the defendant. The relevant material filed in opposition to the plaintiff’s summons consisted of:
(a) Two affidavits of the defendant’s solicitor, Ms Weston of Hall & Wilcox lawyers, affidavit affirmed 10 April 2024 and 3 May 2024; and
(b) Affidavit of Mr Gray affirmed 2 May 2024.
17After a hearing, and on 21 May 2024, Judicial Registrar Gurry published reasons for his decision refusing the plaintiff’s applications for further discovery and for further answers to interrogatories by the defendant. The plaintiff now appeals that decision.
18A review from a decision of a Judicial Registrar is conducted as a hearing de novo.
Notice of Review
19The Notice of Review filed by the plaintiff seeks:
1. An order that further and better discovery be made by the Defendant [of] any documents in respect of:
“any report of an employee, servant or agent of the defendant suffering a musculoskeletal injury said to have resulted from the manual handling of freight from 15 May 2003 to 15 April 2020”.
2. An order that the Defendant file and serve further and better answers to interrogatories 7, 8, 9, 11 and 12 of the Plaintiff’s Interrogatories for the Examination of the Defendant dated 7 December 2023. [3]
[3]Notice Seeking Review of the Decision of the Court Constituted by a Judicial Registrar dated 22 May 2024.
20The plaintiff was represented by Mr Allan of counsel and the defendant was represented by Mr Moulds KC leading Mr Scully of junior counsel.
21The request for further and better answers to interrogatories and the further discovery request pertain to the same issue namely, the existence of previous reports of musculoskeletal injury said to have resulted from the manual handling of freight, and accordingly, the thrust of the defendant’s objections to the two requests may be read largely pari passu.
The Further Interrogatories Request
22Because the legitimacy of the further discovery request depends very considerably on the answer given to interrogatory 7, it is sensible to address it immediately. The plaintiff’s interrogatory 7 asked of the defendant:
Other than this claim, since 15 May 2008, has the defendant received any report of a musculoskeletal injury said to have been sustained by one of its workers as a result of the worker performing the Task?[4]
[4] Plaintiff’s Interrogatories for Examination of the Defendant dated 7 December 2023.
23Mr Gray answered on behalf of the defendant in these terms:
I have caused a search to be made of the relevant database of injury and incident reports, known as the SAP HR database. For the period between 15 May 2003 and 15 April 2020, there were 44,066 incident or injury reports by employees of Australia Post – including employees of the defendant - 17,359 of which related to musculoskeletal injuries. It is not possible to filter the results of the search by body part (i.e. if the injury was suffered to the relevant worker's neck, back or shoulder, for example); the location of the injury or incident; the time of the incident or injury; or the relevant entity - such as the defendant, a subsidiary of Australia Post - with whom the reporting worker was employed at the time of the report. By reason of the above, I object to answering this interrogatory, as it is oppressive - in that it would be unreasonable to expect the defendant to search through the 17,359 reports one-by one, as would be required to respond to the interrogatory, to locate any relevant reports - and requires inquiries to be made regarding incidents and injuries that would not relate to a question between the defendant and the plaintiff in this proceeding.[5]
[5]The Defendant’s Further Answers to the Interrogatories of the Plaintiff dated 2 May 2024.
The Narrowed Relief Sought by the Plaintiff
24Had the plaintiff persisted at the hearing of the Notice of Review with the broad relief it sought in the Notice of Review, then I would have dismissed it. However, Mr Allan conducted the plaintiff’s arguments before me on a different and much more narrowed basis. I note there is no evident reason to explain why such a moderated form of relief was not sought before his Honour Judicial Registrar Gurry.
25Although Mr Allan accepted that as matters presently stand, and based on Mr Gray’s affidavit, it is not possible for the plaintiff to go behind it and challenge the parameters of the search capabilities of the defendant’s electronic records system, nonetheless, he submitted, that this was not the end of the matter because of additional information that has been supplied to the defendant by the plaintiff.
26Mr Allan relied on an affidavit made by the plaintiff dated 11 April 2024. In this affidavit, the plaintiff provided the names of people he worked with as managers and team leaders, and to whom he said reports of injury were made. He asserted that these people should be readily able to be asked by the defendant if they have any knowledge of any reports of musculoskeletal injuries, and if by the provision of any such information the defendant is able to obtain incident reports, or records of those reports then they should be discovered.
27The plaintiff deposed that whenever he suffered injury at the defendant, he would report it verbally to his team leader or manager, and that he saw other workers do the same. However, he did not suggest the number of occasions he saw this occur and he did not name any of the workers he said adopted this procedure. Neither did he say if he was aware of the nature of any of their injuries, and more particularly, if any of them were of a type that might be ascribed the broad description of musculoskeletal injuries. He further deposed that the team leader or manager would then write up the injury in an incident report, and he observed this occur when other people were injured, but again he did not identify any of these people by name.
28The plaintiff in his affidavit named Scott Duncan, Carole Tootel,[6] David Tabone, Adam Larter and Ben Singh, as his Team Leaders. He also named Darren Jones, Cameron Gamble, Darren Cassar and Brent Purcell as his Managers.
[6]The plaintiff named a Carole Tootell, though Ms Weston deposed on 3 May 2024 to making inquiries with a Ms Carole Tootel. Presumably they are the same person.
29I note that the procedure the plaintiff described that existed for reporting incidents and injuries, is not in contest by the defendant and, therefore, the plaintiff’s evidence of the procedure in operation takes the matters in dispute no further.
30Mr Allan next referred to the affidavit made by Ms Weston dated 3 May 2024. Ms Weston deposed that in light of the contents of the plaintiff’s affidavit and the information he supplied, the defendant had identified that Ms Tootel, Mr Tabone, Mr Larter and Mr Cassar continued to be employed by Australia Post or its related entities.
31Ms Weston also deposed that Ms Tootel and Mr Larter having been contacted by her, agreed to a video conference with her. She deposed that they each recalled one employee who had a musculoskeletal injury in or around the period of the plaintiff’s employment, but that was the extent of the details they could furnish.
32Ms Weston deposed that having spoken with Mr Cassar, he was unable to assist in locating any documents relevant to any report of an employee servant or agent of the defendant who had suffered a musculoskeletal injury from manual handling of freight, in the period 15 May 2003 and 15 April 2003.
33Ms Weston deposed that she had been unable to make contact with Mr Tabone, although she had endeavoured to do so twice by telephone on 18 April and 3 May 2024.
34Mr Allan submitted that “usual details” of the injuries recalled by Ms Tootel and Mr Larter to which Ms Weston deposed, should be deposed to by Mr Gray sworn in answer to interrogatory 7, and interrogatories 8-10 should be answered accordingly by Mr Gray, depending on any additional relevant information that is forthcoming.
35Mr Allan further submitted that the provision by Ms Weston, the solicitor for the defendant, of what he described as a vague characterised of two injuries, does not comply with the requirements of the County Court Civil Procedure Rules 2018 (‘the Rules’), and is non-responsive to the interrogatory. In addition, Mr Allan submitted that Ms Weston’s affidavit made no reference to any efforts to contact Mr Jones, Mr Gamble, Mr Singh and Mr Purcell.
Answers to Interrogatories
36The Rules provide in relation to answers to interrogatories at rule 30.05:
(1) A party interrogated shall answer each interrogatory insofar as it is not objectionable in accordance with the following provisions—
…
(e) where the party has no personal knowledge of the fact or matter inquired after, the party shall, for the purpose of enabling the party to form a belief as to the fact or matter (so far as the party can), make all reasonable inquiries to determine—
(i) whether any person has knowledge of the fact or matter which was acquired by that person in the capacity of that party’s servant or agent; and
(ii) if that is the case, what that knowledge is;
(f) the party shall make the inquiries referred to in paragraph (e) notwithstanding that at the time the party is required to answer the interrogatory any person having the relevant knowledge has ceased to be that person’s servant or agent;
37Interrogatories have an evidentiary role to play in litigation and in the conduct of a proceeding. I am satisfied that the plaintiff is entitled to a sworn further answer to interrogatory 7, by the proper officer of the defendant to the inquiries undertaken and to which Ms Weston deposed.
38I also am not satisfied that the answer to interrogatory 7 is exhaustive in the absence of explanation of any effort to contact Darren Jones, Cameron Gamble, Ben Singh and Brent Purcell. Interrogatory 7 can and should be better answered to explain the reasonable inquiries made of them and what, if anything, relevant to the request is obtained.
39The plaintiff is entitled to a sworn response in answer to interrogatory 7 in which the information obtained from each of the existing employees with whom it has spoken is described, and any other information that may be obtained from the other employees identified, and if no contact can be made with them the steps taken to do so.
40The fact that in response to the provision of the names of his managers and team leaders by the plaintiff, Ms Tootel and Mr Larter have apparently each recalled one employee who had a musculoskeletal injury in or around the period of the plaintiff’s employment (and it may well be that they are each referring to or recalling the same employee) but they had no better details to provide does not immediately impress as a “smoking gun”. After all, Mr Gray has already identified that he is aware that in the period sought by the plaintiff, 17,359 of 44,066 incident or injury reports by employees of Australia Post, including employees of the defendant related to musculoskeletal injuries. The fact of the making of such reports is not the real point of objection by the defendant, but rather it is that without more, the task to do so is not proportionate. My decision, therefore, that the defendant file and serve better answers to interrogatory 7, in no way presupposes that after making all reasonable inquiries that the matters can be taken any further and, indeed, if the inquiries deliver up nothing better than Ms Weston has disclosed from Ms Tootel and Mr Larter, then the further answer to interrogatory 7 would not enlarge the defendant’s discovery obligations because of the limitations to which Mr Gray has deposed and that I address later in these reasons.
41In addressing the sufficiency of the answer to interrogatory 7, I also accept the plaintiff’s objection that in light of Ms Weston deposing that Mr Tabone remains employed by the defendant, the making of two unsuccessful phone calls to him by her does not constitute “making all reasonable inquiries” within the meaning of the rule 30.05.
42If after the defendant makes all reasonable enquiries of Mr Jones, Mr Gamble, Mr Singh and Mr Purcell, any reports of musculoskeletal injuries said to have resulted from the manual handling of freight can be identified by the defendant, without the technical limitations and manual search parameters and manhours required to do so, to which Mr Gray has deposed, then the defendant must:
(a) answer interrogatories 8-10 accordingly; and
(b) discover any documents relevant to reports that it is able to identify and locate.
43I will set out the balance of the interrogatories to which the Notice of Review is directed for the sake of completeness and the answers provided to date by the defendant.
· Interrogatory 8: “If 'yes' to any part of the preceding interrogatory, state the 'usual particulars' and / or 'usual details', as applicable, of each such report.” Answer: “Not applicable.”[7]
· Interrogatory 9: “In respect of any report identified in answer to the preceding interrogatory, following that report did the defendant review or revise any system of work relevant to the Task?” Answer: “Not applicable.”[8]
· Interrogatory 10: “If 'yes' to the preceding interrogatory, describe that review or revision.” Answer: “Not applicable.”[9]
[7] the Defendant’s Further Answers to Interrogatories of the Plaintiff dated 2 May 2024.
[8] Ibid.
[9] Ibid.
44The defendant recognised that the existence or otherwise of reported musculoskeletal injuries to employees handling freight, may or may not be relevant to the issues in dispute. The defendant says that it has admitted a duty of care owed to the plaintiff, and so it is problematic to suppose that the issue of foreseeability of harm could be informed in any significant manner by the existence of prior reports of musculoskeletal injury while handling freight. Whether it could prove significant or not is not a triable issue.
45The objection made by the defendant to answering the interrogatory is not one that the interrogatory is unclear, or that it could not be relevant. That would be a difficult argument to make good as things stand.
· Interrogatory 11 asked: “As at the commencement of the Period during the Period, or in the time since (stating which), has/had the Defendant performed any documented risk assessment relevant to the Task?” Answer: “Yes.”[10]
· Interrogatory 12 asked: “If 'yes' to the preceding interrogatory, provide the 'usual details' and / or 'usual particulars' as applicable of each such risk assessment, including stating any identified risks.” Answer:
I believe that there were a number of risk assessments performed regularly over the Period, and since. With respect to those conducted within the Period, I have been able to identify A Task Analysis document, created during the period, related to the duties of a Freight Handler.
On 5 December 2013, a Safe Operating Procedure document for Unit Load Devices was revised, having been previously issued in February 2012. Risks associated with manual handling were controlled under this procedure by ensuring approved devices were used to raise ULDs to an optimum height for loading and removing mail products.
In May 2014, a Safe Operating Procedure document was created with respect to the task of loading, unloading and securing pallets on vehicles. Risks associated with manual handling were identified, and control measures - including those relating to communication with coworkers; adopting appropriate posture when performing manual handling, e.g . not reaching - were identified.
A Manual Task Risk Assessment of wrapping pallets was prepared on 23 December 2014, identifying risks associated with this task - including manual handling risks - and adopting controls, including safe manual handling practices.
Shortly after the Period, on 14 May 2015, a Safety Sheet was prepared regarding Conveyor Safety. With respect to the task of loading and unloading items, the controls implemented included moving items one at a time using both hands, holding the items close to your body; testing item weight before commencing to lift, and asking for help if required; bending at the knees and moving one's feet to avoid stooping, bending, stretching, twisting and reaching; and taking regular micro-pauses and stretching to help reduce fatigue and prevent injury.
I otherwise object to the interrogatory as it relates to any risk assessments performed prior to, or in the time since, the Period.[11]
[10] Ibid.
[11]Ibid.
46Interrogatory 11 requested risk assessments “as at the commencement of the Period”.[12] Risk assessments in place at the commencement of the period are potentially relevant, for example, to the reissued Safe Operating Procedure document dated 5 December 2013 identified by the defendant.
[12]Ibid (emphasis added).
47I accept that risk assessments performed since the Period, and post-injury changes to a system of work are also potentially relevant as they could, in appropriate circumstances, demonstrate what a defendant could have done pre-injury to devise or maintain a safe system of work.[13]
[13] see Thielemann v The Commonwealth 1982 VR 713 and like cases.
48Interrogatory 12 should respond to the request by stating if there was any risk assessment within the Period and prior to 5 December 2013 and since 14 May 2015.
Further Discovery
49Rule 29.01.01(3) of the Rules, provides that documents required to be discovered in a proceeding are documents which, after a reasonable search, are in the party’s possession, and which:
(a) the party relies upon;
(b) the party is aware would adversely affect its case;
(c) the party is aware would adversely affect another party’s case; or
(d) the party is aware would support another party’s case.[14]
[14] Emphasis added.
50What constitutes a ‘reasonable search’ is addressed in rule 29.01.01(5) of the Rules, and matters that can be taken into account when determining what constitutes a ‘reasonable search’ include:
(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document to be found; and
(e) any other relevant matter.
51Mr Gray deposed in his affidavit dated 2 May 2024, that that Australia Post and its subsidiaries have approximately 60,000 direct or indirect employees, who may be involved in manual handling of freight.
52Mr Gray deposed that since 2010, incident and injury reports for the defendant have been recorded in a system known as “SAP HR”. A search Mr Gray arranged to be conducted identified that from 15 May 2003 to 15 April 2020, there were 44,066 incidents or injuries reported, of which 17,359 related to “musculoskeletal injuries”.[15] Mr Gray deposed to the amount of work which would be required including the difficulties in undertaking searches for what was sought in the application. He deposed that without exporting each report one by one it is not possible to further limit the search for injuries to a reporting of the person’s neck, back or shoulders, or for reports relating to the task of moving freight.
[15] Affidavit of Jonathan Gray dated 2 May 2024 at paragraph [6].
53The request for further discovery in its original guise in the Notice of Review would not have been proportionate.
54The defendant’s continuing discovery obligations will operate to require the disclosure of any relevant documents that can be readily identified and retrieved in the SAP HR system maintained by the defendant for the period sought and that stem from any information obtained after making the further inquiries and the responses to the same that interrogatory 7 would better require. Any better answers to interrogatories 8, 9, 10 and 12 will, of course, depend on the better answer to interrogatory 7.
55For the reasons stated, the ruling of Judicial Registrar Gurry dated 21 May 2024 is set aside and in lieu thereof I order as follows:
1. The defendant by 20 June 2024 is to file and serve further and better answers to interrogatory 7 and 12 in accordance with these reasons.
2. Any further and better discovery by the defendant (including full inspection) is to be provided by 20 June 2024.
3. The Notice of Review if otherwise dismissed.
4. In the absence of agreement, the parties are directed to file a short note in relation to the costs of the Notice of Review within 7 days of today.
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