COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS -v- MAKINGS
[2007] WADC 221
•20 DECEMBER 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS -v- MAKINGS [2007] WADC 221
CORAM: NISBET DCJ
HEARD: 3 DECEMBER 2007
DELIVERED : 20 DECEMBER 2007
FILE NO/S: CIV 710 of 2004
BETWEEN: ANDREW WEIR COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS
Plaintiff
AND
COREY PAUL MAKINGS
Defendant
Catchwords:
Practice and procedure - Appeal from decision of Deputy Registrar - Refusal of leave to administer interrogatories - Whether interrogatories permissible
Legislation:
Nil
Result:
Appeal allowed in part
Representation:
Counsel:
Plaintiff: Mr K S Pratt
Defendant: Mr K N Allan
Solicitors:
Plaintiff: Stephen Browne Lawyers
Defendant: K N Allan
Case(s) referred to in judgment(s):
Dunbar v Perc [1956] VLR 583
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Wisniewski v Tolley (1967) 10 FLR 157
NISBET DCJ:
Background
The plaintiff was born on 3 November 1963 and before the motor vehicle accident which I shall shortly describe, he was employed as a finance manager. The pleadings disclose that there is no dispute about the essential features of the motor vehicle accident in which the plaintiff was involved. On 3 October 2002, he was driving a motor vehicle in a northerly direction along Ennis Avenue in Rockingham when he collided with the rear of a vehicle driven by the defendant which had entered the carriageway from Willmott Drive on his left. In consequence of this collision, the plaintiff sustained serious injuries, including, it would seem, head injuries.
The writ of summons was issued by the plaintiff in his own right on 31 March 2004. An affidavit sworn by the plaintiff's solicitor on 9 December 2004 annexed a report from a rehabilitation specialist, Dr Kim Fong, dated 16 February 2004. This report opined that the plaintiff had adequate capacity to understand the nature of his claim for personal injuries and that he had an ability to make competent decisions in his best interest with respect to his claim. There were however, at all material times, administrators appointed to the plaintiff's estate by the Guardianship and Administration Board. It seems that on 12 December 2002 that Board made an order appointing Sheila Coull and Lorna Ann Cross joint plenary administrators of the plaintiff's estate.
Again, it is remarkable to note, that notwithstanding the existence of the administration order, the proceedings were carried on and conducted by the plaintiff in his own name and in his own right until an order was made by a former Judge of this Court on 11 November 2005 amending the name of the plaintiff to "Andrew Weir by his joint next friends Sheila Coull and Lorna Ann Cross". Presumably this occurred in recognition of the provisions of O 70, r 3 of the Rules of the Supreme Court which does not require an order for the appointment of a guardian ad litem where a plenary administration order has been made under the Guardianship and Administration Act 1990.
Notwithstanding this order, the proceedings continued to be conducted alternatively as if the plaintiff was proceeding in his own right and by the plaintiff through his joint next friends.
The point has some significance because, as will be seen, one of the grounds upon which the plaintiff seeks leave to interrogate the defendant is his alleged mental incapacity.
Relevant pleadings
Against this background I turn to the relevant pleadings. In his amended statement of claim filed 8 April 2004, the plaintiff pleads as follows:
"1.The plaintiff is a 40 year old man having been born on 3 November 1963.
2.On 3 October 2002:
2.1the plaintiff was driving a motor vehicle in a northerly direction in the right‑hand lane of Ennis Avenue, Rockingham approaching the intersection of Willmott Drive.
2.2The defendant was travelling in an easterly direction along Willmott Drive and performed a left‑hand turn into the right lane of the northbound carriageway of Ennis Avenue in front of the plaintiff's vehicle.
2.3Immediately thereafter the plaintiff changed lanes into the left‑hand lane of the northbound carriageway of Ennis Avenue and at the same time the defendant also changed lanes into the left‑hand of the northbound carriageway of Ennis Avenue and a collision ensued ('the accident').
3.The accident was caused by the negligence of the defendant.
PARTICULARS OF NEGLIGENCE
The defendant was negligent in that he:
3.1Failed to keep any proper lookout.
3.2Entered into Ennis Avenue when it was unsafe to do so.
3.3Failed to brake, steer or control his motor vehicle adequately so as to avoid a collision.
3.4Entered into the right‑hand lane of Ennis Avenue which was the lane in which the plaintiff was driving when it was unsafe to do so.
3.5Changed lanes to the left‑hand lane when it was unsafe to do so."
By his defence, the defendant pleaded as follows:
"The defendant:
(a)Admits that on 3 October 2002 at about 4 pm the defendant drove his vehicle in an easterly direction along Willmott Drive, Waikiki and after having ensured that it was safe to do so, made a left‑hand turn and commenced to travel in a northerly direction on Ennis Avenue in the right‑hand lane.
(b)Says that at about the same time the plaintiff was driving his motor vehicle in a northerly direction on Ennis Avenue, Waikiki approaching the intersection with Willmott Drive.
(c)Admits that the plaintiff's vehicle collided with the defendant's vehicle.
(d)Says that prior to the collision the defendant had, after indicating his intention to do so, commenced to move into the left‑hand lane in order to avoid the plaintiff's vehicle which was at high speed approaching the rear of the defendant's vehicle in the same lane, colliding with the defendant's vehicle but as he did so, the plaintiff drove his vehicle into the left‑hand lane and collided with the rear of the defendant's vehicle.
(e)Save and except aforesaid denies each and every statement of fact, particular of negligence, particular of injury and particular of damage pleaded in pars 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the statement of claim.
(f)Says that the said collision was caused or contributed to by the negligence of the plaintiff.
PARTICULARS OF THE PLAINTIFF'S NEGLIGENCE
(i)Travelled at an excessive speed in the circumstances.
(ii)Failed to keep any or any proper lookout.
(iii)Failed contrary to reg 109 of the Road Traffic Code 2000 when following another vehicle, to keep such distance behind it as would enable the plaintiff to stop his vehicle in an emergency with safety and without running into the vehicle in front of him.
(iv)Failed to travel or keep a sufficient or adequate distance behind a preceding vehicle.
(v)Failed contrary to reg 126 of the Road Traffic Code 2000 to drive his vehicle as nearly as practicable entirely within a single marked lane and moved laterally from such lane when he could not do so with safety.
(vi)Failed to take any or any adequate action to avoid a collision with the defendant's vehicle.
(vii)Failed to take any or any adequate care for his own safety."
I am obliged to observe yet again in claims of this type that these pleadings are not in proper form. The statement of claim assumes the existence of a duty of care without pleading what it is and how it has been breached. The defence does not answer the statement of claim as it should, by pleading to each alleged fact, by the "confess and avoid" method. Accordingly, when it comes to interrogating, these deficiencies are not only manifest but magnified. This means that some interrogatories could be seen as a request for further and better particulars which would ordinarily mean that they would run the risk of being attacked on that basis alone – see Dunbar v Perc [1956] VLR 583. In my opinion, however, the better view is given in Wisniewski v Tolley (1967) 10 FLR 157.
Against the backdrop of these pleadings, the plaintiff sought leave to interrogate the defendant. That application came on for hearing before a Deputy Registrar of the Court and was dismissed in its entirety on 22 August 2007. It is from that order of the Court which the plaintiff now appeals and, as is well enough known, an appeal to a Judge of this Court from a Registrar or Deputy Registrar is a hearing de novo: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
The District Court Rules in relation to interrogatories is O 47 which, for the sake of completeness I will set out in its entirety:
"(1) The RSC Order 27 applies, subject to this rule.
(2) Leave of the Court to serve notice on a party is not required under the RSC Order 27 Rule 1(1) if the party consents to being served without the leave of the Court.
(3) Leave of the Court to serve notice on a party is not required under the RSC Order 27 Rule 1(1) if the action is a personal injuries action and—
(a)the notice is served within 75 days after the party files a defence; and
(b)the interrogatories specified in the notice relate to—
(i)the occurrence of the incident pleaded as the cause of the personal injuries;
(ii)the defendant's system for preventing incidents of the type alleged to have occurred;
(iii)the plaintiff's medical history in the 5 years prior to the incident;
(iv)the symptoms and treatment of the personal injuries pleaded; or
(v)the plaintiff's employment history in the 5 years prior to the accident.
(4) A party applying for leave under the RSC Order 27 Rule 1 to serve interrogatories must—
(a)file and serve with the application a minute of the proposed interrogatories; and
(b)make the application at least 7 days before it is heard."
Because the interrogatories were not delivered within the timeframe allowed by O 47 of the District Court Rules, leave was required to administer the interrogatories and O 27 of the Rules of the Supreme Court became relevant, particularly O 27 r 5 which sets out the grounds upon which objection to answering interrogatories may be taken, namely:
"(a)that it is scandalous or irrelevant, not bona fides for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary;
(b)that the matters enquired into are not sufficiently material at that stage;
(c)privilege;
(d)any other ground on which objection may be taken."
The interrogatories
"1.On 3 October 2002 were you driving a motor vehicle (hereinafter referred to as 'your vehicle') in a northerly direction along Ennis Avenue, Rockingham, when it collided with a motor vehicle (hereinafter referred to as 'the plaintiff's vehicle') being driven by the plaintiff?
2.As to matters which occurred prior to your making a left‑hand turn (as pleaded in paragraph (a) of the defence):
2.1As you travelled east along Willmott Drive approaching Ennis Avenue, did you observe a give way sign applicable to vehicles turning left from Willmott Drive into Ennis Avenue?
2.2Immediately before turning left into Ennis Avenue did you stop your vehicle?
2.3If your answer to interrogatory 2.2 above is no, what was the speed of your vehicle immediately prior to turning left into Ennis Avenue?
2.4Before turning left into Ennis Avenue, did you look to your right to check for vehicles travelling north along Ennis Avenue?
2.5If your answer to interrogatory 2.4 is yes, did you see the plaintiff's vehicle?
2.6If your answer to interrogatory 2.5 is yes, provide an estimate of the distance the plaintiff's vehicle was to the south of your vehicle when first you saw it?
2.7If your answer to interrogatory 2.5 is yes, in which lane of the northbound carriageway of Ennis Avenue was the plaintiff's vehicle travelling when you saw it and identify the particular lane as being the lane closest to the median strip (the right‑hand lane) or the kerbside lane (the left‑hand lane)?
2.8If your answer to interrogatory 2.5 is yes, for how long (in seconds) do you estimate after you first saw the plaintiff's vehicle did you begin your left hand turn into Ennis Avenue?
2.9If your answer to interrogatory 2.5 is yes, over what distance do you estimate the plaintiff's vehicle travelled north along Ennis Avenue whilst you saw it?
2.10If your answer to interrogatory 2.5 is yes, what is your estimate of the speed the plaintiff's vehicle was travelling whilst it was in your sight?
2.11If your answer to interrogatory 2.5 is yes, how long (in seconds) after first seeing the plaintiff's vehicle do you estimate the collision occurred?
3.As to matters which occurred after the defendant had turned left (as pleaded in paragraph (a) of the defence) but prior to commencing to travel in a northerly direction in the right hand lane of Ennis Avenue (as pleaded in paragraph (a) of the defence):
3.1After turning left into Ennis Avenue from Willmott Drive, did you directly cross the kerbside lane (the left‑hand lane) and move directly into the lane closest to the median strip (the right‑hand lane)?
3.2After turning left into Ennis Avenue from Willmott Drive, did you travel in the kerbside lane (the left‑hand lane) for a distance prior to moving into the lane closest to the median strip (the right‑hand lane)?
3.3What is your estimate of the distance (if any) you travelled north in the kerbside lane (the left‑hand lane) before you commenced moving into the lane closest to the median strip (the right‑hand lane) of the northbound carriageway of Ennis Avenue?
3.4After you had commenced turning left into Ennis Avenue but before entering into the lane closest to the median strip (the right‑hand lane) of the northbound carriageway of Ennis Avenue, did you look for vehicles travelling north along Ennis Avenue to the south of your vehicle?
3.5If your answer to interrogatory 3.4 is yes, describe the manner by which you looked (e.g. by rear vision mirror, direct sight or otherwise).
3.6If your answer to interrogatory 3.5 is yes, did you see the plaintiff's vehicle?
3.7If your answer to interrogatory 3.6 if yes, provide an estimate of the distance the plaintiff's vehicle was to the south of the rear of your vehicle when you first saw it?
3.8If your answer to interrogatory 3.6 is yes, which lane of the northbound carriageway of Ennis Avenue was the plaintiff's vehicle travelling in when you saw it and identify the lane as being the lane closest to the median strip (the right‑hand lane) or the kerbside lane (the left‑hand lane)?
3.9If your answer to interrogatory 3.6 is yes, for how long (in seconds) do you estimate you observed the plaintiff's vehicle whilst it was in your sight?
3.10If your answer to interrogatory 3.6 is yes, over what distance do you estimate the plaintiff's vehicle travelled north whilst it was in your sight?
3.11If your answer to interrogatory 3.6 is yes, what is your estimate of the speed the plaintiff's vehicle was travelling whilst it was in your sight?
3.12If your answer to interrogatory 3.6 is yes, how long (in seconds) after first seeing the plaintiff's vehicle do you estimate the collision occurred?
4.As to matters which occurred after you commenced travelling in a northerly direction on Ennis Avenue (as pleaded in paragraph (a) of the defence) but before indicating your intention to move left (as pleaded in paragraph (d) of the defence):
4.1After turning left into Ennis Avenue from Willmott Drive and after you had commenced travelling north in the lane closest to the median strip (the right‑hand lane) of the northbound carriageway of Ennis Avenue, did you look for vehicles behind you travelling in a northerly direction along Ennis Avenue?
4.2If your answer to interrogatory 4.1 is yes, describe the manner by which you looked (e.g. by rear vision mirror, direct sight or otherwise).
4.3If your answer to interrogatory 4.1 is yes, did you see the plaintiff's vehicle?
4.4If your answer to interrogatory 4.3 is yes, provide an estimate of the distance the plaintiff's vehicle was to the south of the rear of your vehicle when you first saw it?
4.5If your answer to interrogatory 4.3 is yes, which lane of the northbound carriageway of Ennis Avenue was the plaintiff's vehicle travelling in when you saw it and identify the lane as being the lane closest to the median strip (the right‑hand lane) or the kerbside lane (the left‑hand lane)?
4.6If your answer to interrogatory 4.3 is yes, for how long (in seconds) do you estimate you observed the plaintiff's vehicle whilst it was in your sight?
4.7If your answer to interrogatory 4.3 is yes, over what distance do you estimate the plaintiff's vehicle travelled north whilst it was in your sight?
4.8If your answer to interrogatory 4.3 is yes, what is your estimate of the speed the plaintiff's vehicle was travelling whilst it was in your sight?
4.9If your answer to interrogatory 4.3 is yes, how long after first seeing the plaintiff's vehicle do you estimate the collision occurred?
4.10Immediately after you had commenced travelling north in the lane closest to the median strip (the right‑hand lane) of the northbound carriageway of Ennis Avenue, at what speed do you estimate you were travelling?
5.As to paragraph (d) of the defence:
5.1What distance do you estimate your vehicle travelled north along Ennis Avenue to the point where you first indicated your intention to move into the kerbside lane (left‑hand lane) of the northbound carriageway of Ennis Avenue?
5.2What distance do you estimate you travelled whilst your left‑hand indicator was on?
5.3Did you commence moving into the kerbside lane (left‑hand lane) of the northbound carriageway of Ennis Avenue after indicating your intention to move left?
5.4If your answer to interrogatory 5.3 is yes, what distance do you estimate your vehicle travelled north along Ennis Avenue between the point where you indicated your intention to move left and the point where you commenced moving towards the kerbside lane (left‑hand lane) of the northbound carriageway of Ennis Avenue?
5.5If your answer to the interrogatory 5.3 is yes, did you look for the plaintiff's vehicle after indicating but prior to commencing your move into the kerbside lane (left‑hand lane) of the northbound carriageway of Ennis Avenue?
5.6If your answer to interrogatory 5.5 is yes, describe the manner by which you looked (e.g. by rear vision mirror, direct sight or otherwise).
5.7If your answer to interrogatory 5.5 is yes, did you see the plaintiff's vehicle?
5.8If your answer to interrogatory 5.7 is yes, state the distance or provide an estimate of the distance the plaintiff's vehicle was to the south of the rear of your vehicle when you first saw it?
5.9If your answer to interrogatory 5.7 is yes, which lane of the northbound carriageway of Ennis Avenue was the plaintiff's vehicle travelling in when you saw it and identify the lane as being the lane closest to the median strip (the right‑hand lane) or the kerbside lane (the left‑hand lane)?
5.10If your answer to interrogatory 5.7 is yes, for how long (in seconds) do you estimate you observed the plaintiff's vehicle whilst it was in your sight?
5.11If your answer to interrogatory 5.7 is yes, over what distance do you estimate the plaintiff's vehicle travelled whilst it was in your sight?
5.12If your answer to interrogatory 5.7 is yes, what is your estimate of the speed the plaintiff's vehicle was travelling whilst it was in your sight?
5.13If your answer to interrogatory 5.7 is yes, how long after first seeing the plaintiff's vehicle do you estimate the collision occurred?
5.14When you last saw the plaintiff's vehicle before the collision where was your vehicle located on Ennis Avenue and in particular:
(a)How far north of Willmott Drive do you estimate your vehicle was?
(b)Was your vehicle in the lane closest to the median strip (the right‑hand lane), the kerbside lane (the left‑hand lane) or was your vehicle partly in both of those lanes?
5.15When you last saw the plaintiff's vehicle before the collision where was it on Ennis Avenue, and in particular:
(a)How far north of Willmott Drive do you estimate it was?
(b)Was it in the lane closest to the median strip (the right‑hand lane), the kerbside lane (the left‑hand lane) or was your vehicle partly in both of those lanes?
5.16Where was your vehicle located on Ennis Avenue when the collision occurred, and in particular:
(a)How far north of Willmott Drive do you estimate your vehicle was?
(b)Was your vehicle in the lane closest to the median strip (the right‑hand lane), the kerbside lane (the left‑hand lane) or was your vehicle partly in both of these lanes?
5.17Where was the plaintiff's vehicle on Ennis Avenue when the collision occurred, and in particular was it in the lane closest to the median strip (the right‑hand lane), the kerbside lane (the left‑hand lane) or was your vehicle partly in both of those lanes?
5.18What part of your vehicle came into contact with the plaintiff's vehicle in the collision and in particular, which of any or all of the following best describes that part:
(a)rear right?
(b)rear left?
(c)rear middle?
5.19What part of the plaintiff's vehicle came into contact with your vehicle in the collision and in particular, which of any or all of the following best describes that part:
(a)front right?
(b)front left?
(c)front middle?"
Are the interrogatories necessary (in the general sense)?
Addressing me on the issue of the requirements of the justice of the case and of the necessity for the delivery of interrogatories, counsel for the plaintiff stressed the plaintiff's medical difficulties and in particular, referred to a report of Dr Peter McCarthy, a consultant psychiatrist, dated 28 June 2005 exhibited to an affidavit of the plaintiff's solicitor sworn 16 May 2007. In that report, Dr McCarthy wrote:
"This gentleman has suffered a major, serious, irreversible neurological insult in the form of a cerebral vascular event accompanying the traumatic dissection of his left carotid artery arising from the accident.
…
He does appear to be able to manage his own affairs with the assistance of his mother and sister (but probably not by himself) and has been unable to return to his original occupation.
This gentleman is suffering from a Dementia secondary to his neurovascular accident following his head injury. The essential feature of a Dementia is the development of multiple cognitive deficits that include memory impairment and cognitive disturbances such as Aphasia, Apraxia, Agnosia and a disturbance in executive functioning. The cognitive deficits must be sufficiently severe to cause impairment and occupational and social functioning and must represent a decline from a previous high level of functioning. This man has a persistent cognitive deficit with Aphasia, Apraxia and disturbance of executive functioning. In association with his vascular/head injury Dementia, he suffers fluctuating mood symptoms." (Original emphasis)
In consequence of this, counsel for the plaintiff contended that the plaintiff was not in a position to provide adequate instructions as to the circumstances of the accident to enable his claim to go forward and feared that if not granted leave to interrogate, the plaintiff would not be able to adduce sufficient evidence to make a case for the defendant to answer.
The defendant's position in all of this is that the degree of cognitive impairment of the plaintiff is to be hotly contested at trial. Defendant's counsel referred me to a further report from Dr McCarthy exhibited to the same affidavit of the plaintiff's solicitor referred to above, which report is dated 28 July 2005 and which reads, relevantly:
"This man has suffered a very significant neurological/neurovascular insult as a result of the accident in question, leading to the numerous deficits I have outlined in my previous report. He is, however, fiercely independent and despite his deficits, I believe he does have the capacity to make decisions in his best interest with respect to the conduct and settlement of his personal injury claim although I trust he would discuss such things with his legal adviser and his supportive mother. He is sometimes given to anger and impulsive behaviour, however he is able to consider matters, I believe he is able to follow the case, instruct his solicitor and make appropriate decisions. He has more difficulty with expressing thoughts than with forming them. He is intelligent and usually rational, depending on the circumstances."
When that is read with the report of Dr Kim Fong of 16 February 2004 previously referred to, the defendant submits that the necessity for the grant of leave is at least conjectural and at the best for the plaintiff, somewhat diminished.
The difficulty with this submission is that there is an order of the Guardianship and Administration Board which reads:
"Upon an application dated 12 November 2002 by the applicant in respect of the represented person and upon the Guardianship and Administration Board ('the Board') being satisfied that the represented person‑
(a)is unable, by reason of mental disability to make reasonable judgments in respect of matters relating to all of his estates; and
(b)is in need of an administrator of his estate; and
(c)cannot have such need met by other means less restrictive of his freedom of decision and action."
The order proceeds to appoint two plenary administrators of the plaintiff's estate. In my opinion, whilst that order remains in force, I cannot go behind it and I must both accept and act upon it in its terms. In these circumstances the plaintiff therefore is at a disadvantage in the conduct of his litigation. He is in the same position as the plaintiff in the two authorities mentioned earlier, neither of which was cited to me by counsel (in fact no authorities were cited to me by counsel). They are: Wisniewski and Dunbar. Wisniewski was a case in which the plaintiff was an 11‑year‑old child knocked from her bicycle by the defendant. Dunbar was a case of a fatal accident brought by the widow of a deceased passenger in the defendant's motor car. Dunbar laid down the principle followed in Wisniewski that in all running down cases, if it is reasonably possible that a plaintiff may more effectively make a case by obtaining admissions on oath from the defendant by interrogatories, then interrogatories, subject to any specific objections on particular grounds, should ordinarily be allowed. I suggest that this is the genesis of O 47 r 2 of the Rules of the District Court. In Wisniewski, Kerr J said at p 164:
"I should add that whether this decision results in the greater use of interrogatories in accident cases in the Australian Capital Territory is a matter for the future to reveal, but, for myself, I see no reason to fear that the delivery of interrogatories by both parties in many such cases would work an injustice. Indeed, I can see many advantages in each party having full admissions from the other as to the circumstances of an accident before the case comes to hearing.
As to the actual interrogatories in the present case, they all seem to me to satisfy the test that they could have been asked of the defendant in examination‑in‑chief, were he called as a witness and I propose to allow them all accept interrogatory 1, which is not pressed, and interrogatory 20, which is repetitive. Of course, the defendant is expected to answer these questions only to the best of his knowledge. He is not able to or required to give opinion evidence or to make calculations or deductions, but he must give his own knowledge of the facts to which the questions are directed in the same way as he would have to do in the box, if asked such questions in examination‑in‑chief."
I would observe in passing that it is unfortunate that the drafter of the interrogatories set out above did not follow the formula used by the drafter of the interrogatories in Wisniewski.
Before going on to deal with each interrogatory, I should record that the views of Kerr J in Wisniewski as they apply to running down cases have not been universally accepted in respect of other forms of litigation as White J of the Supreme Court of Queensland observed when delivering a paper on the topic in Brisbane in 1996 (Brisbane, Litigation Reform Commission Conference, "Civil Justice Reform: Streamlining the Process"). He said that the restrictions placed on the use of interrogatories in the Supreme Court of Queensland were such that interrogatories "will not be missed and have a role in a very limited number of cases". However, I think that both Dunbar and Wisniewski demonstrate that interrogatories still have a role to play in disputes of this type.
I will now deal with each interrogatory.
The interrogatories
1.This interrogatory is disallowed on the ground that it does not go to a matter in issue between the parties.
2.1I disallow this interrogatory too on the ground that it does not go to an issue between the parties. There has been no plea by the plaintiff that the defendant failed to yield to a stop sign or give way at a give way sign.
2.2 – 2.5I will allow these interrogatories. It is no answer to them to say as the defendant does that they do not go to a matter in issue between the parties because of the defendant's admissions in its defence. All the defendant has said in his defence is that he turned left into Ennis Avenue "after having ensured that it was safe to do so". Whether or not it was safe for the defendant to turn into Ennis Avenue is one of the ultimate facts in dispute in this case and it is not for the defendant to say that he made his left hand turn when he considered it was safe to do so and not expect that his opinion in the matter will not be tested.
2.6I disallow this interrogatory and every other interrogatory which calls for an estimate to be made whether of distance or time. These interrogatories are badly drawn. The Cambridge online Dictionary defines "estimate" as "a guess of what the size, value, amount, cost, etc, of something might be" and describes the transitive verb "to estimate" as to "guess the cost, size, value, etc, of something". dictionary.com defines "estimate" in its noun form as: "an approximate calculation of quantity or degree or worth; a judgment of the qualities of something or somebody." The purpose of interrogatories is to elicit facts not guesses. This is the first basis upon which I disallow this and all such interrogatories. The second is that the interrogatories of this type calling for "an estimate" are embarrassing because it is not obvious that it is the defendant's answer that is being sought.
2.7I will allow this interrogatory. The objection to answering put by the defendant that the time when the information is sought is not identified is wrong. The time is identified by question 2.4, that is to say, before turning left into Ennis Avenue and it is to be understood as being the time immediately before the left hand turn was commenced.
2.8I disallow this interrogatory. It is oppressive to ask the defendant to answer by reference to seconds of time and it is also objectionable on account of the request that the defendant estimate the time for the reasons expressed above.
2.9 – 2.11I disallow all of these interrogatories for the same reason as I have disallowed interrogatory 2.8.
3.1I disallow this interrogatory. It does not go to a matter in issue between the parties. It has been admitted in the defence.
3.2I disallow this interrogatory for the same reason. Even if it is not expressly admitted in the defence it follows from the plea that the defendant crossed the left hand lane into the right hand lane that he must have travelled in the left hand lane.
3.3I disallow this interrogatory on the ground that it seeks an estimate for the reasons expressed above.
3.4I allow this interrogatory. Once again, the defendant's objection to answering this interrogatory is based on the proposition that because he pleads that he did not enter Ennis Avenue until it was safe to do so then he is the sole arbiter in these proceedings of what was safe and what was not safe. His opinion, because that is all it is, may be tested by interrogatories.
3.5I allow this interrogatory for the same reason.
3.6I allow this interrogatory for the same reason.
3.7I disallow this interrogatory as it again calls for an estimate.
3.8I allow this interrogatory for the same reason as 3.4.
3.9 – 3.12I disallow all these interrogatories on the grounds that they are oppressive as to interrogatories 3.9 and 3.12 and on the grounds that they call for estimates in 3.10 and 3.11.
4.1I allow this interrogatory. Again, the defendant's plea in par (d) of the defence is not an answer for the reasons given above.
4.2 & 4.3I allow these interrogatories for the same reason.
4.4I disallow this interrogatory as it calls for an estimate.
4.5I allow this interrogatory for the same reason.
4.6I disallow this interrogatory as again it calls for an estimate.
4.7 – 4.10I disallow these interrogatories because they call for estimates.
5.1 & 5.2I disallow these interrogatories because they call for estimates.
5.3I disallow this interrogatory as it does not go to a matter in issue between the parties.
5.4 & 5.5These fall away with 5.3.
5.6 & 5.7These fall away with 5.5.
5.8 – 5.13These fall away with 5.7.
5.14(a) I disallow this interrogatory because again it calls for an estimate.
5.14(b) I will allow this interrogatory for the reasons previously expressed.
5.15(a) I disallow this interrogatory as again it calls for an estimate.
5.15(b) I will allow this interrogatory for the reasons previously expressed.
5.16(a) I disallow this interrogatory because again it calls for an estimate.
5.16(b) I will allow this interrogatory for the reasons previously expressed.
5.17I disallow this interrogatory as it is embarrassing. It is embarrassing because the interrogatory asks for the position of the plaintiff's vehicle on Ennis Avenue and concludes by saying "or was your vehicle".
5.18 & 5.19I will allow these interrogatories, again because the defence is not the complete answer. The defendant can be tested by interrogatories as to where the vehicles came into collision with each other.
I propose to publish these reasons by mail to the parties. I will hear the parties as to costs, however my tentative preliminary view is that the plaintiff should only have half his costs of the application and the appeal, to be taxed. If the parties are unable to agree, they should contact my Associate to arrange a time for the matter to be determined or they may make written submissions.
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