Hinnen v Mitchell Erectors Pty Ltd - [1999] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HINNEN -v- MITCHELL ERECTORS PTY LTD [1999] WADC 54

CORAM: COMMISSIONER REYNOLDS

HEARD: 20 AUGUST 1999

DELIVERED : 2 SEPTEMBER 1999

FILE NO/S: CIV 5067 of 1998

BETWEEN: KEVIN RANDALL HINNEN
Plaintiff
AND
MITCHELL ERECTORS PTY LTD
Defendant

Catchwords:

Practice - Interrogatories - District Court Rules 03r1 - Appeal against decision refusing leave to administer - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr J C Prast
Defendant: Mr E Tan

Solicitors:

Plaintiff: Anthony Torre & Monaco
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193
Frost v Brooke [1875] 32 LT 312
Hennessy v Wright (1890) 24 QBD 445
Marriott v Chamberlain (1886) 17 QBD 154
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101

Case(s) also cited:

Adams v Dickenson [1974] VR 77
Copini v Dunlop Tyre Service [1968] SASR 417

COMMISSIONER REYNOLDS:

Introduction

This is an appeal from the order of a Deputy Registrar of this Court made on 16 June 1999 whereby the defendant was refused leave to issue interrogatories in terms of a minute of proposed interrogatories dated 14 April 1999 and filed herein. The Deputy Registrar also ordered that the defendant pay the plaintiff's costs of the defendant's application seeking leave to issue the interrogatories.
In lieu of the Deputy Registrar's order, the defendant seeks orders that it have leave to issue interrogatories against the plaintiff in terms of the interrogatories dated 14 April 1999 and that the plaintiff do provide sworn answers or objections to the interrogatories within 14 days of the date of the orders.
The plaintiff claims damages against the defendant as his employer in relation to a work accident which occurred on 16 August 1996. The plaintiff alleges that whilst employed as a rigger by the defendant and in the course of his employment he was required to walk across an area of wet concrete carrying a bucket of grouting cement and when doing so slipped and sustained severe injuries. The plaintiff also alleges that his injuries and consequent loss and damage have been caused by the negligence and/or breach of duty and/or contract of employment by the defendant. The plaintiff further alleges that he sustained a lumbar spine injury from the accident resulting in a 25 per cent loss of efficient use of the back and that as a consequence of his injury he is permanently precluded from returning to his pre‑accident employment. He seeks past and future economic loss on the basis that he would have continued working in his pre‑accident capacity until the normal retirement age of 65 years.

General principles

There is no issue between the parties on the general principles which should be applied to an application seeking leave to issue interrogatories. The right to interrogate is not confined to facts directly in issue, but extends to any fact the existence or non existence of which is relevant to the existence or non existence of the facts directly in issue. See Marriott v Chamberlain (1886) 17 QBD 154 at 163 and Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101. Interrogatories relate to a matter in question if they can fairly be said to be material to support a party's case or destroy that of his opponent. See Hennessy v Wright (1890) 24 QBD 445. I have already mentioned that the plaintiff's claim is for damages as a consequence of injuries allegedly sustained by him in an accident at work. It is permissible to interrogate as to the nature and extent of the injury sustained and to the issue of damages. See Frost v Brooke [1875] 32 LT 312.
To these cases I add American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193 wherein Myers J said at p195:
"The general principle is stated in Halsbury's Laws of England, 3rd ed., vol. 12, p. 68, in these terms: "Interrogatories are in the discretion of the Court and will only be allowed when they are necessary for disposing fairly of the cause or matter or for saving costs." They must, of course, be limited to facts that will support the case of the interrogating party or cut down the case of his opponent."
At p196 he said:
"It was established under the earlier English rules that interrogatories which were prolix and oppressive or unnecessary could be disallowed as a whole, even though some of them were proper, and that the Court was not required to go through interrogatories of that kind and ascertain which were admissible and which were not. It was also established that the Court was entitled to come to the conclusion that interrogatories were of the kind specified on a general view of the interrogatories and indeed that the mere obligation of the opposite party and the Court to go through the interrogatories and pick out from a large number that were improper the comparative few that were allowable, was itself unreasonable and itself could constitute oppressiveness."
Order 3 r1 of the District Court Rules provides that subject to r2 interrogatories may only be administered with the leave of the court.
Order 3 r2 provides as follows:
"2Leave to administer interrogatories shall not be necessary when the party required to answer the same consents to do so, or when:
(a)the action involves a claim for personal injury; and
(b)the interrogatories are administered within 110 days of an appearance being filed; and
(c)the interrogatories relate to:
(i)the occurrence of the accident pleaded;
(ii)the defendant's system for preventing accidents of the type alleged to have occurred;
(iii)the plaintiff's medical history for five years prior to the accident;
(iv)the symptoms and treatment of the injury in question;
(v)the plaintiff's employment history for five years prior to the accident."

Analysis

Interrogatories 1‑3 inclusive concern the plaintiff's employment with the defendant as a rigger. Interrogatory 1 asks the plaintiff in what capacity he was working for the defendant at the time of the accident. There seems to be no reason for this interrogatory. Paragraph 1 of the statement of claim states that at all material times the plaintiff was employed by the defendant as a rigger and this is admitted in para 1 of the defence.
The defendant has asked the plaintiff in interrogatories 2 and 3 what his duties were at the time of the accident and when he commenced working as a rigger with the defendant. These matters would surely be within the knowledge of the defendant and not require any response by the plaintiff. The defendant has not put any evidence before me to suggest otherwise.
Interrogatories 4‑17 inclusive are generally concerned with the accident. Some of them are drafted in an imprecise way and it could not be said that they necessarily seek a fact supporting the defendant's case or cutting down the plaintiff's case. For example interrogatory 6.1 asks the plaintiff what he was doing in the two minutes prior to the accident.
Interrogatory 6.2 asks the plaintiff what he was doing at the time of the accident. Given that interrogatory 6.1 is concerned with a time period immediately prior to the accident interrogatory 6.2 must relate to the very moment of the accident itself. Interrogatory 7 asks the time of the accident. Paragraph 4 of the statement of claim provides that at about 8.30am on 16 August 1996 the plaintiff slipped on wet concrete while carrying a bucket of grouting cement. In their current form interrogatories 6.2 and 7 simply invite the plaintiff to repeat what he has already pleaded and so they serve no useful purpose.
Interrogatory 9 asks the plaintiff if the surface of the concrete was wet at the time of the accident. Why ask this question when the plaintiff's statement of claim expressly provides that the concrete was wet? There are four further parts to interrogatory 9 which concern inter alia how the water got on the concrete, how long it had been there and its depth. In my opinion these questions merely seek to obtain evidence.
Interrogatory 10 asks the plaintiff to describe the finish on the concrete i.e. was it rough or smooth. There is nothing in the pleadings about the nature of the concrete surface.
Interrogatory 11 is concerned with whether or not the plaintiff reported the presence of water on the concrete to the defendant before the accident. There are four further parts to the interrogatory which concern inter alia when, where and to whom a report was made, the substance of the report and any response to it by the defendant. The making of or failure to make such a report is not raised in either the statement of claim or the defence. Further, it has not been explained to me why the defendant needs to ask the plaintiff about any report actually made to the defendant and/or any response actually made by the defendant.
Interrogatory 12 asks the plaintiff whether he reported the accident to the defendant. There are four further parts to this interrogatory on when, where and to whom any report was made, the substance of the report and any response to it by the defendant. The comments I made on interrogatory 11 apply with equal force to interrogatory 12.
Interrogatory 13 asks the plaintiff if he did not report the accident to the defendant then why did he fail to do so. There is nothing about any such failure to report in the pleadings. This interrogatory does not relate to any matter raised in the pleadings and so it serves no useful purpose.
Interrogatories 14 and 15 concern the footwear, if any, that the plaintiff was wearing at the time of the accident. The plaintiff has not alleged that the defendant failed to provide him with a particular type of footwear. The defendant has pleaded contributory negligence but within such plea has not made any specific allegation about the plaintiff's footwear or lack thereof at the time of the accident. The defendant seems to be fishing for something to support its plea of contributory negligence. Interrogatory 15 simply asks whether the plaintiff still has the footwear worn by him at the time of the accident and if not what has become of it. The current whereabouts of the footwear is simply not a material fact.
Interrogatories 16 and 17 concern the history, if any, of the plaintiff walking on dry concrete slabs and wet concrete slabs. In my opinion interrogatory 16 which asks the plaintiff the frequency or number of occasions he has walked on dry concrete slabs prior to the accident serves no useful purpose. The plaintiff's claim relates to a wet concrete slab. Interrogatory 17 which concerns wet concrete slabs asks the plaintiff the frequency or number of occasions on which he has walked on wet concrete slabs and to "describe the difficulties", if any, that he experienced when doing so. Such an imprecisely worded interrogatory is not likely to serve any useful response.
Interrogatories 20‑25, 40 and 41 concern medical treatment and symptoms of the plaintiff and sickness benefits received by the plaintiff. Receipt of sickness benefits relates to medical history and work capacity. Interrogatory 20 asks the plaintiff if he sought medical treatment for injuries sustained in the accident and if so, when, where and from whom did he first do so. Paragraph 7 of the statement of claim makes it clear that the plaintiff did seek medical treatment. The statement of claim refers to a place and various medical practitioners. That is not to say that the place and the various medical practitioners mentioned make up all of the medical treatment received. The statement of claim does not mention the name of the person from whom the plaintiff first sought medical attention. There is no evidence before me that the defendant has had any difficulty in obtaining any medical evidence relevant to the plaintiff's condition from any medical practitioner and/or in relation to any particular period of time since the accident. There is no suggestion on the pleadings that the timing of medical treatment is an issue.
Interrogatories 21‑23 ask the plaintiff inter alia what symptoms, if any, did and does he experience as a result of the accident and whether the symptoms restrict his physical activities and if so, what ones. There is no evidence before me to support an argument that the defendant has not been sufficiently informed about the plaintiff's symptoms and their consequences or potential consequences by the pleadings and copy medical reports provided to it. Accordingly there is no reason for me to conclude that these interrogatories will save costs rather than unnecessarily add to costs.
Interrogatory 24.1 asks the plaintiff if he experienced pain in his lumbar spine five years prior to the accident. There is no mention in the pleadings, including the defence, of the plaintiff suffering from any pre‑accident injury in the lumbar spine or at all. Accordingly this interrogatory does not relate to any issue between the parties. In my opinion it amounts to fishing. Interrogatory 24.2 asks the plaintiff if he has experienced pain in his lumbar spine subsequent to the accident. It is clear from para 7 of the statement of claim that the plaintiff complains that he sustained a lumbar spine injury as a result of the accident.
Interrogatories 40 and 41 ask inter alia whether the plaintiff received sickness benefits in the 10 year period prior to the accident and if so details of when and for what disability. I again make the point that no issue concerning any pre‑accident injury is raised in the pleadings. Further, there is no evidence to support leave being granted to interrogate on this issue up to 10 years prior to the accident.
Interrogatories 18, 26‑30 and 37‑39 concern the plaintiff's employment history. Interrogatory 18 asks the plaintiff inter alia if he had been previously employed as a rigger and why did he cease such work. I cannot see how the answer to this interrogatory would be relevant given that the defendant actually employed the plaintiff as a rigger and also given that there is no issue in the pleadings on the plaintiff's capacity to adequately perform all of the duties of a rigger. This interrogatory seems to be fishing for some instance or suggestion of failure by the plaintiff in some previous employment as a rigger to take reasonable care for his safety.
Interrogatories 26 and 27 concern the plaintiff's employment history before the accident. The defendant seeks various details going back 10 years prior to the accident. Interrogatory 27.5 seeks the average hours worked each day by the plaintiff over such 10 year period. It is unreasonable in my view. There is no evidence to support the need for such a detailed history to be given by the plaintiff. Interrogatory 27.7 seeks the reasons for terminations of employment within 10 years prior to the accident. It is a more general version of interrogatory 18 and I repeat the comments I made on interrogatory 18 in relation to it.
Interrogatories 28 and 29 concern the plaintiff's work history, if any, subsequent to the accident. The accident occurred on 16 August 1996. The plaintiff's statement of claim filed herein on 29 December 1998 claims that the plaintiff has been totally and permanently disabled from working since the accident. There is no evidence before me to suggest that the plaintiff has worked since the accident. There is nothing in the wording of the interrogatories to suggest that the defendant has any basis to think that the plaintiff has worked since the accident. There are seven parts to interrogatory 29. They seek details inter alia on the names of employers, the plaintiff's work capacity, average hours worked each day, gross and net earnings and reasons for terminations of employment. There is simply no evidence to justify these interrogatories and I am not persuaded that they amount to anything more than fishing. Further and in any event the plaintiff having been involved in an accident at work I would expect any return to work and details thereof to be well documented by the defendant's workers' compensation insurer such that interrogatories of this sort would be an unnecessary expense.
Interrogatory 30 asks the plaintiff whether he was unemployed or not working at any time subsequent to the accident. If the plaintiff did not work on any one day after the accident then he could rightfully answer yes to this interrogatory. I am therefore of the view that this interrogatory serves no useful purpose.
Interrogatory 31 is concerned with gratuitous services. The plaintiff's statement of claim does not seek any gratuitous services and so there is simply no need for the plaintiff to answer this interrogatory.
Interrogatory 19 concerns the plaintiff's return to work including work trials, if at all, subsequent to the accident. It is in many respects repeated in interrogatories 28 and 29.
Interrogatories 35 and 36 concern the plaintiff's return to work other than a work trial, if at all, at any time subsequent to the accident. These interrogatories are in many respects a repetition of interrogatories 19, 28 and 29.
Interrogatories 37 and 38 ask the plaintiff inter alia whether he derived any income from or carried on a business in a period of 10 years prior to the accident. If so then the defendant seeks various details inter alia the time period of the business or businesses, the nature of the work performed by the plaintiff, the average number of hours worked each day and the plaintiff's net and gross earnings of the business or businesses.
If a plaintiff has the residual capacity after an accident to conduct a business of a type he conducted prior to the accident then such residual capacity would be relevant to the assessment of future economic loss. The correctness of this statement as a general proposition does not mean that plaintiffs can be interrogated on business operations and/or business income as a matter of course in every case. There needs to be some justification shown in each case that such interrogatories are necessary for disposing fairly of the cause or matter or for saving costs.
There is no evidence to suggest that the plaintiff in this case has ever been involved in a business. Further, the wording of the interrogatories does not suggest that the defendant has any basis to think that the plaintiff has ever been involved in a business.

Conclusion

For all these reasons and having regard to the interrogatories as a whole I am of the opinion that the defendant should not be granted leave to issue interrogatories in terms of its proposed interrogatories dated 14 April 1999. The Deputy Registrar was correct in refusing to grant such leave.
In my opinion the orders of the Deputy Registrar should be upheld, the defendant's appeal dismissed and the defendant pay the plaintiff's costs of the appeal to be taxed or as may be mutually agreed.