Dawson v Lygon Food Store Pty Ltd (Ruling)
[2013] VCC 1812
•9 October 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-02549
| PETER DAWSON | Plaintiff |
| v | |
| LYGON FOOD STORE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2013 | |
DATE OF RULING: | 9 October 2013 (Revised) | |
CASE MAY BE CITED AS: | Dawson v Lygon Food Store Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1812 | |
RULING
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Subject:PRACTICE AND PROCEDURE – Interrogatories
Catchwords: Interrogatories – plaintiff seeking further and better answers from defendant.
Legislation Cited: Wrongs Act 1958; County Court Civil Procedure Rules (Vic) 2008; Workers Compensation Act (Vic) 1958
Cases Cited:Victorian WorkCover Authority v Jones Lang La Salle (Vic) Pty Ltd [2012] VSC 412; Central Goldfields Shire v Hayley & Ors (2009) 24 VR 378; Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390; Marriott v Chamberlain (1886) 17 QBD 154; Petchem Ltd (in liq) v BF Goodrich Chemical Ltd [1982] VR 485; Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201; Western Suburbs Hospital v Currie (1987) 9 NSWLR 511
Ruling: Defendant ordered to give further and better answers to interrogatories potentially relevant to questions in issue.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McWilliams | Slater & Gordon |
| For the Defendant | Mr P Hamilton (Solicitor) | Wotton & Kearney |
HIS HONOUR:
Introduction
1 This ruling relates to an application made by the plaintiff at a directions hearing before me on 7 August 2013 seeking further and better answers to interrogatories delivered by the plaintiff for the examination of the defendant.
The proceeding
2 By way of an Amended Statement of Claim, the plaintiff alleges that the defendant managed and operated a food store known as the Lygon Food Store at premises situated at 263 Lygon Street, Carlton (“the premises”). The plaintiff also alleges that at all relevant times the defendant was the occupier of the premises.
3 In particular, the plaintiff alleges:
“On 23 July 2009 … the plaintiff attended the store and was sitting on the stool in the store … and when the stool collapsed as a result of one of the legs of the stool breaking causing the plaintiff to fall and strike his head on a nearby bench … .”
4 The plaintiff also alleges that there had been a “previous incident at the premises involving the same kind of the stool breaking and/or collapsing” and causing a person to suffer injury.
5 The plaintiff alleges that as a result of such fall, he has suffered injury and, in particular, injury to his cervical spine requiring multiple surgical procedures.
6 The plaintiff alleges that the fall was caused by the negligence of the defendant, and relies on the following particulars of negligence:
“(a)failing to provide safe sitting in the premises;
(b)providing stools at the premises that were unsafe;
(c)failing to remove the stool;
(d)failing to purchase or supply for use at the premises alternative seating;
(e)failing to respond adequately or at all to the previous incident involving a stool at the premises breaking and/or collapsing and causing a person to suffer injury;
(f)permitting the plaintiff to sit on the stool when the defendant, its employees or agents knew or ought to have known the stool was, or might be unsafe;
(g)failing to inspect the stool adequately or at all;
(h)failing to maintain the stool adequately or at all;
(i)failing to conduct any or any adequate risk assessment in respect of the stool;
(j)failing to warn the plaintiff not to sit on the stool;
(k)failing to warn the plaintiff that the stool was unsafe.”
7 The plaintiff also alleges that the fall occurred as a result of the breach by the defendant of its duties pursuant to s14B(3) of the Wrongs Act 1958 (as amended). I should point out that recent authority indicates that Part IIA of the Wrongs Act 1958 (Vic) – that part which deals with occupier’s liability – does not create a statutory duty, the breach of which sounds in damages at the suit of the injured person. Rather, Part IIA of the Wrongs Act 1958 (Vic) redefines the common law duty owed by an occupier of premises setting out matters to be taken into account in determining the scope of the duty and whether or not the duty has been discharged in a particular case.[1] Such situation does not affect the content of this ruling.
[1]See Victorian WorkCover Authority v Jones Lang La Salle (Vic) Pty Ltd [2012] VSC 412 at paragraph [5]; see also Central Goldfields Shire v Hayley & Ors (2009) 24 VR 378 at paragraph [4] – [6] per Neave JA.
8 The defendant denies it has a liability to the plaintiff.
The Interrogatories
9 Pursuant to the order of her Honour Judge Davis made on 11 September 2012, the plaintiff delivered interrogatories for the examination of the defendant. Such interrogatories included the following:
(a)Interrogatory 11, which states:
“Since the commencement date, has the defendant changed the seating furniture used in the premises?”
The previous interrogatory enquires as to when the defendant commenced trading at the premises and this date is defined as the “commencement date”.
(b)Interrogatory 14, which reads:
“If yes to any part of the preceding interrogatory:
(a) describe the system or systems;
(b)after the said date has there been a change to the system or systems?
(c)if yes to any part of (b), give the usual details of the change to the system or systems including the date of such change.”
The preceding interrogatory enquires as to whether the defendant had a system for inspecting the stool or stools prior to or on 23 July 2009, when the plaintiff suffered his fall.
(c)Interrogatory 17, which states:
“After the incident did the defendant:
(a)dispose of;
(b)replace;
(c)remove from use in the premises;
(i)the stool:
(ii)the stools?”
(d)Interrogatory 24, which states:
“Immediately after the incident did the defendant inform the plaintiff about:
(a) any prior incident similar to the incident;
(b) what the plaintiff intended doing with the stools.”
10 The defendant delivered Answers to such Interrogatories by an affidavit sworn on 10 May 2013 by Mr Pasquale Coco (“Coco”), who describes himself as a director of the defendant and authorised to answer the interrogatories delivered on behalf of the plaintiff.
11 In particular, Coco swore that he objected to answering Interrogatory 11, Interrogatory 14(b) (and thus 14(c)), Interrogatory 17(a)-(c) in respect of the stools, and Interrogatory 24(b) on the ground that such interrogatories did “not relate to an issue between the parties”.
Relevant legal principles
12 Order 30.02(1) of the County Court Civil Procedure Rules 2008 (Vic) (“the Rules”) provides:
“(1)Subject to the other paragraphs in this Rule, any party may serve interrogatories on another party relating to any question between them in the proceeding.”
13 Order 30.02 is subject to Order 34A, which states that unless the Court otherwise orders, a party shall not serve written interrogatories. In this case, as I have already stated, such an order has been made.
14 An interrogatory relates to a question if it has some association or connection with the question.[2] Accordingly, “the right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue”.[3]
[2]See Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390
[3]See Marriott v Chamberlain (1886) 17 QBD 154 at 163
15 Order 30.07 of the Rules provides, in part:
“(i)A party interrogated shall answer each interrogatory except to the extent that it may be objected to any of the following grounds –
(a) the interrogatory does not relate to any question between the party and the interrogating party;
(b) …
(c) …
(d) …
(e) …
(ii)Without limiting paragraphs (i)(a) an interrogatory that does not relate to any question includes an interrogatory the sole purpose of which is to –
(a) impeach the credit of the party interrogated;
(b) enable the interrogating party to ascertain whether the party has a claim or defence other than which the party has raised in the proceeding;
(c) enable the interrogating party to ascertain the evidence by which the party interrogating intends to prove the person’s case, including the identity of witnesses.
(iii) …”
16 The defendant relies on the grounds set out in Order 30.07(1)(a) of the Rules. This part of the Order reflects the fundamental requirement that an interrogatory relate to a question between the parties in the proceedings (see Order 30.02(1)).
17 Order 30.07(2) of the Rules identifies several instances of an interrogatory to which the party interrogated may object on the ground that it does not relate to any question in the proceeding. However, an interrogatory is not objectionable merely because the answer may turn out to be of no assistance to the party interrogating. The test is whether the interrogatory is directed to a question in the proceeding such that an answer to the interrogatory may enable the party interrogating to advance his own case or destroy or impeach the case of the party interrogated.[4]
[4]See Petchem Ltd (in liq) v BF Goodrich Chemical Ltd [1982] VR 485 at p 488
18 It is perhaps worth referring to the matter of Petchem Ltd (in liq) v BF Goodrich Chemical Ltd[5] which involved the plaintiff seeking an indemnity from the defendant in respect of amounts paid by the plaintiff to a worker pursuant to the Workers Compensation Act 1958 that worker was paid compensation and the plaintiff sought to recover that sum from the defendant pursuant to the then s62(1)(b) of the Workers Compensation Act 1958. In particular, the plaintiff alleged that the injury suffered by the worker was caused by the negligence of the defendant and thus the indemnity. The defendant denied liability and also alleged contributory negligence against the injured worker.
[5]op cit
19 In that proceeding, the plaintiff interrogated the defendant in relation to subsequent alterations or modifications to the system of supporting the machine which had caused the injuries to the injured worker. Such interrogatory was objected to.
20 Delivering judgment, Gray J stated, in part:
It has long been established that it is open for a plaintiff to prove that some change has been made by a defendant to a machine or to plant following an industrial accident. The cases lay it down that, although a subsequent change is not to be treated as an admission of negligence, the changed arrangements can be used as indicating a practical and safer alternative that may have been reasonably open to the defendant. …Once it is accepted that a subsequent change in the arrangements for supporting the machine may be relevant to the issue of negligence, it is difficult to find any good reason for upholding the defendant's refusal to answer. It is well established that an interrogator is not confined to matters directly in issue. He may enquire of ‘any facts the existence or non-existence of which is relevant to the existence or non-existence of facts directly in issue’”.
Later, Gray J, in response to the objection that it was not a proper interrogatory to enquire as to whether or not changes had taken place after a particular incident, stated:
“It is true that, in this case, changes may or may not have occurred, but the plaintiff is hardly seeking to make out a case that it is otherwise unable to advance. It would be surprising if a defendant's obligation to answer an interrogatory of this kind depended upon whether the interrogatory sought an admission to a specifically alleged change or whether it merely asked if a change had occurred.
Is it a proper matter for interrogation? The usual test for determining this question is whether the defendant's officer could be asked the question in evidence-in-chief if called as a witness for the plaintiff.”
Later again, Gray J states:
“For my part, I do not consider that an interrogatory is objectionable, merely because the answer may turn out to be of no relevance. The question is whether the interrogatory is directed to a subject matter which can be seen to have potential relevance. Actual relevance, in a given case, will depend upon the answer. An employer may make a change to a machine for reasons quite divorced from the question of safety of operations. In such a case, the subsequent change may have no relevance to the issue of negligence. However, I do not consider that an interrogatory becomes objectionable merely because the answer may prove irrelevant to an issue. That result will only follow if the interrogatory can be seen to be directed to a factual area of no possible relevance.” [6]
[6](op cit) at pp 487 – 488
Submissions by the Plaintiff
21 Counsel for the plaintiff submitted that it was inappropriate that the defendant rely on the ground that the impugned interrogatories do not relate to a question in the proceeding. In particular, counsel referred to Petchem Ltd[7] and Nelson v John Lysaght (Australia) Ltd.[8] In the matter of Nelson, the worker was injured during the course of his employment as a result of being required to walk backwards in the course of his employment whilst manoeuvring a part of a coil of steel. At the trial of the action, evidence was given that about a month after the accident a new system was installed which made it unnecessary for a worker to walk backwards carrying such a coil. On appeal to the High Court, the majority of the Court accepted that evidence of a change of system could be used to demonstrate how the risk of injury could be eliminated or minimised.
[7]op cit
[8](1975) 132 CLR 201 at p 215
22 In argument before me, the defendant submitted that such cases were distinguishable because they related to industrial accidents and not to an occupier’s liability such as the present proceeding.
23 Subsequently, counsel for the plaintiff referred the Court (and the defendant) to the New South Wales Court of Appeal decision of Western Suburbs Hospital v Currie[9] which concerned a plaintiff suing an occupier as a result of falling downstairs and suffering injury. One of the issues raised on appeal was whether evidence that, since the accident, a gate and chain had been installed to prevent such an accident occurring again was relevant. McHugh JA, at pages 523C-D, stated:
“Counsel for Mrs Currie submitted that the Hospital could have avoided the injury to her by installing a gate in front of the stairs. Since the accident a gate and a chain have been installed. While the use of these precautions is not an admission of negligence, it is cogent evidence that the provision of a gate or a chain was a reasonably practicable method of eliminating the risk of injury arising from the position of the steps: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 215. Counsel for the Hospital submitted that the provision of a chain or gate may not have prevented the accident to the plaintiff. However, I think that the provision of a gate almost certainly would have.”
[9](1987) 9 NSWLR 511
Conclusions
24 Interrogatories must relate to a question in a proceeding between the interrogating party and the party interrogated. In the context of interrogatories in a proceeding in which pleadings are served “question” means any question, or matter of fact for determination by the Court raised by the pleadings (see Order 1.13(1) of the Rules). Pleadings, of course, include any particulars and, in the circumstances of this case, includes particulars of negligence.
25 The pleadings include an allegation of fact that there was a “previous incident” involving a stool collapsing and a person suffering injury. Furthermore, the particulars of negligence relate, amongst other things, to the previous incident, adequate risk assessments in respect of the stool and permitting the plaintiff to sit on a stool when the defendant ought to have known the stool was or might be unsafe. Such issues are potentially relevant to the issue of the foreseeability of the risk of injury and the response of the defendant to obviate such risk of injury. As I have already stated, a party may be interrogated as to anything which can be fairly said to be material to advance a case of the interrogating party or destroy of the case of the party interrogated.
26 I also note that Coco answered Interrogatory 13 which enquired as to a system for inspecting both the stool and stools. I rule as follows:
(a)The defendant is ordered to answer Interrogatory 11. Although this interrogatory is wide in its terms, an answer to such interrogatory may have relevance to issues of foreseeability of risk of injury leading up to the incident. I also note that if “yes” to Interrogatory 11, Interrogatory 12 requires the deponent to give the usual particulars of such change, which may make clear the relevance or otherwise to any question in the proceeding.
(b)I order that the defendant answer Interrogatories 14(b) and 17 as each of the answers to these interrogatories may have relevance as to the safety of the stools and thus the foreseeability of risk.
(c)I order the defendant to answer Interrogatory 24(b). Although I consider such an interrogatory is wide it has potential relevance as to whether or not the defendant considered that the stools were fit for use in the premises. In this sense, I consider that if such a question was asked of the defendant in cross-examination, the answer to such question could be potentially relevant.
27 Accordingly, I rule that the defendant answer the aforesaid interrogatories.
28 I will hear the parties on the issue of costs.
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