Cleave v HUGHES-ODGERS
[2023] WADC 2
•18 JANUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: CLEAVE -v- HUGHES-ODGERS [2023] WADC 2
CORAM: REGISTRAR KINGSLEY
HEARD: 21 OCTOBER 2022
DELIVERED : 18 JANUARY 2023
FILE NO/S: CIV 3849 of 2019
BETWEEN: JACK CLEAVE
Plaintiff
AND
DWAYNE HUGHES-ODGERS
Defendant
Catchwords:
Practice - Application for leave to administer interrogatories - Turns on own facts
Legislation:
District Court Rules (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Leave granted to administer some interrogatories
Representation:
Counsel:
| Plaintiff | : | Mr G T Stubbs |
| Defendant | : | Mr D P Coster |
Solicitors:
| Plaintiff | : | RZ Injury Lawyers |
| Defendant | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
Griffiths v Kerkemeyer (1977) 139 CLR 161
REGISTRAR KINGSLEY:
By a chamber summons lodged 30 June 2022 the defendant seeks leave to issue interrogatories directed to the plaintiff. The chamber summons states that the parties have conferred: the conferral being a letter from the defendant to the plaintiff dated 26 May 2022 inviting the plaintiff to consent to answer the interrogatories enclosed with the letter. By email dated 5 June 2022 the plaintiff declined to answer the interrogatories.
Preliminary matter
The action had been placed on the inactive cases list by notice dated 19 October 2022. On plaintiff counsel's oral application, and without opposition, the action was removed from the inactive cases list and the entry for trial extended to 28 February 2023.
Overview
The plaintiff claims damages for personal injury arising from a motor vehicle accident on 10 July 2018.
The plaintiff pleads he was resting on a bunk in a rear compartment of a prime mover when the defendant, the driver of the prime mover, drove off the sealed road, throwing the plaintiff off the bunk.
The plaintiff pleads he was injured and the particulars of injury are lower back injury and psychological/psychiatric injuries. The plaintiff pleads he has undergone treatment but has ongoing residual disabilities.
By his amended defence (lodged after the delivery of interrogatories by the defendant) the defendant pleads the plaintiff was unrestrained, admits the defendant owed a common law and statutory duty of care to the plaintiff, but otherwise denies the fact of injury, treatment, and ongoing disability.
The defendant goes on to plead contributory negligence on the part of the plaintiff by reason of his failing to wear a seatbelt, or otherwise ensure he was adequately restrained. The defendant then goes on to plead a number of pre‑existing injuries:
1.Arising out of a motor vehicle accident on 6 September 2011.
2.A pre‑existing disc bulge.
3.Lower back injury which is work-related in 2013.
4.Injuries sustained in a truck accident in 2013.
5.Various lower back injuries sustained through 2015 ‑ 2018.
6.Psychiatric and psychological symptoms through his son's drug use and associated with the plaintiff's prior injuries.
In response to a request for further and better particulars of defence relating to restraint, the defendant responded by answering that the defendant no longer pleads a restraint was provided and then goes on to say the plaintiff ought to have taken reasonable steps to ensure he would not be thrown from the bunk either during an emergency or during normal operation of the vehicle.
Preliminary objection
The plaintiff's counsel submitted that by reason of delay and the non‑conferral that the application ought be dismissed. On 20 May 2022 the defendant wrote to the plaintiff inviting the plaintiff to consent to answering the interrogatories. However, having requested consent on 27 June 2022, the defendant filed a re‑amended defence increasing the grounds to their defence in relation to contributory negligence and causation.
On 8 June 2022 the plaintiff had advised the defendant that an application would be required.
The obligation to confer is contained in O 59 r 9 of the Rules of the Supreme Court 1971 (WA) and r 22 of the District Court Rules (WA) (DCR). The purpose of the Rules is to try to reduce or render unnecessary interlocutory disputes. By requiring the parties to confer, the issues between them may well be narrowed leaving only the essential issues in dispute to be ruled upon by the court. The process of conferral does require an exchange of views, oral or in writing, between the parties for the purpose of trying to resolve the matters in issue.
In my opinion, the letter dated 20 May 2022 fails that threshold purpose. There was no attempt to seek to engage the plaintiff's solicitors to try and narrow the issues.
In any event, the amendments to the defence filed 27 June 2022 would require the defendant to re‑engage the plaintiff in the conferral process. This was not done.
The plaintiff's counsel also submits that having regard to the delay in that the first defence was filed on 27 November 2019.
Rule 47 of the DCR enables a party to serve notice of interrogatories on specified areas within 75 days of a party filing its defence. Rule 46 of the DCR provides that discovery must be given by all parties within 60 days of filing of the first defence. It would appear the intent is that, in the ordinary course, interrogatories would follow discovery.
A timeline is provided in the affidavit of James Conor Clifford affirmed 19 October 2022. It would appear that in December 2019 the defendant issued subpoenas and in late 2020 the plaintiff was examined by a neurosurgeon and a psychiatrist. In March 2022 the plaintiff issued subpoenas to three medical centres.
Mr Clifford then deposes to the accident circumstances drawing attention to a workers' compensation claim dated 21 September 2018 and of various reports from chiropractor, neurosurgeon and vocational rehabilitation provider as to the circumstances of the accident.
Mr Clifford then refers to the various workers' compensation claims or notification of injury starting in 2013 and going through to 2018.
Whilst detailing the timeline the defendant does not give an explanation as to the length of time it has taken to interrogate by reference to the discovery process.
Discussion on the preliminary objection
In my opinion, there has not been any meaningful conferral by the defendant. There has been no exchange of views to try and resolve the extent of interrogatories sought to be delivered. The fact that conferral may have had some utility is seen by the amendments to the defence which, in my opinion, were crafted to give some legitimate forensic basis to certain interrogatories.
In my opinion, whilst conferral may have reduced the issues in dispute, it was inevitable some argument would be required.
A failure to confer may invite an application for an adverse costs order.
In my opinion, the defendant ought be relieved of the failure to confer.
As for delay, the court is being invited to infer that having regard to the issuance of subpoena and medical examinations, that delay is justified.
The court should not have to infer.
It is for the defendant to point to its discovery endeavours and the information gained such that, at the conclusion of that task, the interrogatories could be properly framed.
This was not done.
The action is nearly ready to be entered for trial. The interrogatories do go some way in focusing the attention of both parties or the claim but importantly the heads and quantum of damage.
I will give leave for the interrogatories to be considered.
The interrogatories
Turning to the individual interrogatories, interrogatory 1 enquires as to the make‑up of the bunk the plaintiff was using. The defendant has admitted the plaintiff was resting on a bunk and, as the defendant has not pleaded the bunk contributed to the injury, in my opinion interrogatory 1 is irrelevant.
Interrogatory 2 enquires for how long the plaintiff had been resting on the bunk. There is no apparent relevance between the length of time the plaintiff was resting on the bunk and the fact of the accident and injuries.
Interrogatory 3 enquires whether the plaintiff was awake in the five minutes prior to the accident. The defendant has pleaded the plaintiff was negligent in failing to take any or any adequate regard for his own safety. In my opinion this interrogatory could fairly be said to be material to support the defendant's case and is for a legitimate forensic purpose.
Interrogatory 4 enquires what were the exact movements of the plaintiff's body at the time of the accident. The defendant has denied the plaintiff was thrown out of the bunk and pleads the plaintiff was negligent by failing to take any or any adequate regard for his own safety. In my opinion interrogatory 4 does have some relevance to the defendant's case.
Interrogatory 5 enquires when the plaintiff first became aware he had suffered injuries. The accident occurred on 10 July 2018 and the plaintiff completed a workers' compensation form on 21 September 2018. Having regard to the pleaded pre‑existing injuries of the plaintiff, in my opinion when the plaintiff became aware he had suffered injuries from this accident does serve a legitimate forensic purpose.
Interrogatories 6 and 7 enquire whether the plaintiff discussed the accident with the defendant and what was said. Whilst there may be some relevance in the question whether the plaintiff mentioned having been injured, overall I do not see the relevance of these interrogatories to the pleaded case.
Interrogatory 8 enquires whether the plaintiff believed the defendant had not driven a Mack truck, that the plaintiff had to show the defendant how to drive the vehicle and, enquires whether plaintiff had any concerns about the defendant's fitness to drive the vehicle. In my opinion this interrogatory is irrelevant. It is vague and would fit poorly with the plea of failing to have adequate regard for his safety.
Interrogatories 9 and 10 enquire whether the plaintiff has lodged any workers' compensation claim between 2015 and 2021 and if the answer is 'yes' to provide details of the injury and circumstances of the injury. The defendant has pleaded some claims that it is aware of and in my opinion the interrogatory is proper. It enables the defendant to properly assess the extent of pre‑existing injury and thereby make a more informed assessment of the likely quantum of damage.
Interrogatories 11 to 20 enquire as to the pleaded pre‑existing injuries and that being the case, do have a legitimate forensic purpose.
Interrogatory 21 enquires whether the plaintiff sustained an injury to his right knee in October 2020. In my opinion this interrogatory is fishing as there is no plea relating to the plaintiff's right knee.
Interrogatory 23 enquires whether the plaintiff underwent lumbar surgery in or around October 2016. There is some basis for this question in that the defendant pleads the plaintiff had a lower back injury in September 2016 requiring hospitalisation. In my opinion this question does have relevance to the defendant's pleaded case.
Interrogatory 25 enquires whether the plaintiff, six months prior to the accident, experienced any symptoms in his neck, lower back, and fingers. Whilst the interrogatory directed to the plaintiff's lower back has relevance, in my opinion the question directed to the plaintiff's neck and fingers is fishing.
Interrogatories 26 and 27 refer to whether the plaintiff has experienced any issues with his eyesight. Whilst the basis for the question may have come from a medical report (similar to interrogatory 25), in my opinion the question is fishing and has no relevance to the pleaded issues.
Interrogatory 28 enquires whether the plaintiff stopped working for Miocevich Transport Services after the accident. In my opinion the question has relevance in that the answers may well assist the defendant in its assessment of quantum of damages.
Interrogatories 30 and 31 enquires whether the plaintiff has lived with any of his sons. Interrogatory 32 enquires whether since the material date has the plaintiff lived alone. The plaintiff has claimed a Griffiths v Kerkemeyer[1] component of damage. This refers to services that have been provided to the plaintiff through the tortious conduct of the defendant. I take it that interrogatory 32 is directed to this issue and do not consider it relevant whether the plaintiff has lived alone or not.
[1] Griffiths v Kerkemeyer (1977) 139 CLR 161.
Interrogatory 30 is relevant to the issue of services being rendered to the plaintiff since the accident date. However, interrogatories 31.3 and 31.5 are, in my opinion, fishing.
Conclusion
The plaintiff is to answer interrogatories:
•3
•4
•5
•9
•10
•11 - 20
•23
•25.2
•28
•30
•31.1
•31.2
•31.4.
I will hear counsel on when the interrogatories are to be answered, and on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TS
Court Officer
18 JANUARY 2023
0
1
2