| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MARICH -v- I H I ENGINEERING AUSTRALIA PTY LTD [2013] WADC 19 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 5 FEBRUARY 2013 DELIVERED : 11 FEBRUARY 2013 FILE NO/S : CIV 2519 of 2011 BETWEEN : WAYNE ANDREW MARICH Plaintiff
AND
I H I ENGINEERING AUSTRALIA PTY LTD
First Defendant
DEVEREAUX HOLDINGS PTY LTD
Second Defendant
GRFFIN ENERGY GROUP PTY LTD
Third Defendant
SAFE AND SOUND SCAFFOLDING PTY LTD
Fourth Defendant
Catchwords: Practice and procedure - Interrogatories
(Page 2)
Legislation: Rules of the Supreme Court 1971 (WA)
District Court Rules 2005 (WA) Result: Fourth defendant granted leave to interrogate
Representation: Counsel:
Plaintiff : Mr A Stewart
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Ms M C Hurt
Solicitors:
Plaintiff : Chapmans
First Defendant : SRB Legal
Second Defendant : WHL Legal Pty Ltd
Third Defendant : Not applicable
Fourth Defendant : HBA Legal
Case(s) referred to in judgment(s):
Attorney-General v Gaskill (1882) 20 Ch D 519
Brewer v Colonial Portfolio Services Pty Ltd [2007] WASC 22
Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703
Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361
Dunmall v O'Sullivan [No 4] [2011] WADC 229
Fisher v Stapley [2005] WASCA 16
Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44
Hennessy v Wright (No 2) (1890) 24 QBD 445
Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468
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International Land Developments Pty Ltd (t/as Key West Realty) v Diamo Nominees Pty Ltd [2008] WASC 152
Morago Nominees Pty Ltd t/as Gavin Construction v Casver Imports Pty Ltd [No 2] [2013] WADC 10
Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd (1912) 13 CLR 101; [1911] HCA 35
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 2] [2008] WASC 204
Robertson v Chase [2012] WADC 131
Spedley Securities Ltd (in Liq) v Yuill (No 4) (1991) 5 ACSR 758
Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASC 179
Ugle v State of Western Australia [2002] WASCA 117
(Page 4)
1 PRINCIPAL REGISTRAR GETHING: On or about 2 August 2008, the plaintiff, Wayne Marich, was injured whilst working at the BlueWater Power Station at Collie. In July 2011, he commenced an action against the owners of the power station and two other companies whose employees were undertaking work at the power station. Mr Marich says that the accident occurred whilst he was inspecting some pipework when some scaffolding materials fell onto his left leg. He asserts that his injuries arose as a result of negligence and breaches of the Occupational Safety and Health Act 1984 (WA) and the Occupier's Liability Act 1985 (WA). His employer, Hitachi Plant Technologies Pty Ltd, is not a party to the action.
2 Mr Marich alleges that it was the servants or agents of the fourth defendant, Safe and Sound Scaffolding Pty Ltd (SSS), who stacked or stored the scaffolding which fell on him. 3 By chamber summons dated 23 November 2012, SSS sought orders requiring Mr Marich to answer interrogatories as set out in a Minute of Proposed Interrogatories dated 23 November 2012. Mr Marich has declined to do so on the basis that the request was served outside the time set out in the District Court Rules 2005 (WA) (DCR) and that, in any event, leave ought not to be granted because the proposed interrogatories are defective and oppressive. 4 The power in Rules of the Supreme Court 1971 (WA) (RSC) O 27 r 1 to grant a party leave to issue interrogatories is a general discretion. Specifically, it provides that 'any party may with the leave of the court serve notice on any other party requiring him to answer specified interrogatories relating to any matter in question between the party interrogating and the party served'. In exercising the discretion to grant leave to interrogate, the court is to at least consider the following issues: (a) the general case management principles set out in RSC O 1 r 4A and r 4B; (b) whether the interrogatories sought to be administered serve a legitimate forensic purpose; (c) the burden of answering the interrogatories; and (d) whether the burden of answering the interrogatories is proportionate to the forensic purpose to be served. (Page 5)
See generally: Dalecoast Pty Ltd v Monisse [1999] WASCA 103 [5] - [7]; International Land Developments Pty Ltd (t/as Key West Realty) v Diamo Nominees Pty Ltd [2008] WASC 152 [4] - [5]; Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 2] [2008] WASC 204; Morago Nominees Pty Ltd t/as Gavin Construction v Casver Imports Pty Ltd [No 2] [2013] WADC 10 [10]. 5 The form of each interrogatory is a relevant issue going to both the burden of answering it and the grant of leave. One ground on which a party may object to answering an interrogatory is that 'it is scandalous or irrelevant, not bona fide for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary': RSC O 27 r 5(1)(a). The court should not grant leave for a party to issue an interrogatory which could be the subject of this objection. 6 Given the issues raised by Mr Marich, it is appropriate to commence the analysis with the general case management issues as they apply to the interrogatories as a whole, and then consider each interrogatory.
General case management principles 7 Counsel for Mr Marich in effect submitted that the fact that SSS cannot avail itself of the ability to interrogate without leave in DCR r 47 should count against the grant of leave pursuant to RSC O 27. 8 The District Court Rules r 47 modifies the operation of RSC O 27. It relevantly provides that a party to a personal injuries case is not required to obtain the leave of the court to interrogate provided that the notice is served within 75 days after the party filed a defence and the interrogatories fall within a specified list of subject areas. Those areas are (DCR r 47(3)(b)): (i) the occurrence of the incident pleaded as the cause of the personal injuries; or (ii) the defendant's system for preventing incidents of the type alleged to have occurred; or (iii) the plaintiff's medical history in the 5 years prior to the incident; or (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. (Page 6)
9 Safe and Sound Scaffolding filed its defence on 8 June 2012. In order to take advantage of DCR r 47, it needed to have served its notice of interrogatories by 22 August 2012. It did not do so until 19 October 2012. 10 In my view, the fact that SSS cannot take advantage of DCR r 47 does not prejudice its right to seek the leave of the court to interrogate pursuant to RSC O 27. This conclusion is reinforced by DCR r 47(4) which provides that a party seeking such leave must file and serve a minute of proposed interrogatories with its application. SSS has complied with this requirement. 11 At a more general level, a key case management objective is the 'elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial': RSC O 1 r 4A. 12 Counsel for Mr Marich argued that the delay by SSS in serving a notice of interrogatories should count against the grant of leave to interrogate. In particular, he argued that the delay has, and will, cause significant prejudice to Mr Marich as he seeks to have the matter progress in a timely manner. He submits that the delays mean that the determination of this application is preventing the action being entered for trial and being listed for a pre-trial conference. 13 Safe and Sound Scaffolding asserts that one reason why it did not interrogate earlier was that it was awaiting discovery from Mr Marich. This was not provided until 28 September 2012, with the copies of the documents being provided on 11 October 2012. The request for Mr Marich to answer interrogatories was served on 19 October 2012. 14 The District Court Rules r 46 provides that discovery must be given by all parties within 60 days of the filing of the first defence in the action. As noted, DCR r 47 enables a party to serve a notice of interrogatories on the specified subject areas within 75 days of the party filing its defence. The clear intent of the regime is that, in the ordinary course, interrogatories will follow discovery. This makes logical sense, as the information from the discovered documents will aid in drafting the interrogatories. The fact that SSS waited until it had received discovery from Mr Marich is not something that should count against the exercise of the discretion to grant leave to interrogate. (Page 7)
15 Safe and Sound Scaffolding's application for leave to interrogate is made prior to the action being entered for trial and the obligatory pre-trial conference. In my view, this is the optimal time for such an application to be made. Although this may delay the pre-trial conference, Mr Marich's answers to the interrogatories will assist SSS to prepare for, and meaningfully participate in, the pre-trial conference. In my experience, far too often a pre-trial conference is adjourned because a party has not obtained the information required for it to meaningfully participate in settlement negotiations in the timely manner in which SSS has sought to do so with the present application. 16 In any event, the action is not otherwise ready to be entered for trial and listed for a pre-trial conference. The first defendant has entered an appearance, but has not yet filed a certificate pursuant to RSC O 26 r 16A indicating that it has completed discovery. A liquidator has been appointed to the second defendant, meaning that the action against it is stayed: Corporations Act 2001 (Cth) (CA) s 471B. The third defendant is subject to a deed of company arrangement, likewise giving rise stay: CA s 444E. Mr Marich will need to consider whether he wants to avail himself of CA s 601AG in relation to these defendants so as to draw in any relevant insurers. For these reasons, it would not have been open for Mr Marich's counsel to sign the entry for trial certificate (DCR Form 1). The time taken for Mr Marich to answer any interrogatories ordered will thus not be the operative cause of any delay in the action proceeding to a pre-trial conference. 17 Counsel for Mr Marich did not identify any other general issue or prejudice suggesting that it would not be appropriate to grant SSS leave to interrogate. In my view, there are no case management considerations which suggest that SSS should not be granted the leave to interrogate it requests. It is thus necessary to review each of the proposed interrogatories to consider whether each is relevant, and its forensic purpose outweighs the burden imposed in answering it.
Interrogatories 1 to 5 18 Interrogatories 1 to 5 relate to the supervision and instructions given to Mr Marich prior to the accident. Specifically, they provide: (Page 8)
2. Did you have any supervision in the performance of your work on the material date? If so, please state: 2.1 the nature of the supervision provided; and 2.2 whether that supervision was provided by another Hitachi employee and, if so, their position title; 2.3 if the supervision was not provided by another Hitachi employee, state who the person providing the supervision was employed by, and their position title. 3. Did you receive any instructions in the performance of your work on the material date? If so, please provide the usual particulars in respect of such instruction. 4. Did you have permission and/or authorisation to be performing the task in the boiler area on the material date? If so, please provide the usual particulars in respect of such permission. 5. Were you warned and/or advised prior to the accident that there was or would be stored/stacked scaffolding materials on the access way in the boiler area on the material date? If so, please provide the usual particulars in respect of such warning/advice. 19 There are some defined terms at the commencement of the interrogatories, as well as instructions as to the 'usual particulars'. 20 Mr Marich objected to answering these interrogatories on three grounds, being that: (a) they do not relate to a matter in matter in question as between SSS and Mr Marich, as required by RSC O 27 r 1; (b) the matters in the interrogatories ought to have been dealt with by way of a request for further and better particulars and are thus not the appropriate subject of interrogatories; and (c) the interrogatories seek to obtain evidence which is an impermissible purpose. 21 As to the first ground, an interrogatory will not relate to a matter in question unless it can fairly be said to be material to support a party's case or to destroy that of his opponent: Hennessy v Wright (No 2) (1890) 24 QBD 445, 447; Ugle v State of Western Australia [2002] WASCA 117 [18]. In my view, interrogatories 1 to 5 do relate to matters in question between SSS and Mr Marich in this sense. The failure to supervise and warn Mr Marich are particulars of the (Page 9)
breaches pleaded against SSS in the statement of claim. In the statement of claim, the allegations of duty of care in par 12 (especially particular (k)) and breach of duty in par 14 (see [50] below) are cast in general terms against all defendants. Moreover, one of the key issues in the action is the relative degree of contribution, if any, of the four defendants to the injuries sustained by Mr Marich. Mr Marich's answers, in particular as to the identity of anyone who may have relevantly spoken to him, will be significant to the determination of this issue. The fact that the answer to some of the interrogatories may disclose the name of a witness is not a valid objection to an otherwise appropriate interrogatory: Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468, 476. 22 As to the second ground, interrogatories will not be ordered for the purpose of requiring a party to provide further and better particulars of its case: Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221, 222. The two processes serve different functions - 'particulars are given in order to make a party's case plain, whereas interrogatories are administered to assist the opponent's case': Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361 [18], [39], [40]. More specifically, the purpose of interrogatories is to prove some material fact necessary to a party's cause of action or defence by tendering the interrogatory and the sworn answer of the opponent, so diminishing the burden of proof: Rapid Metal Developments [8]; Attorney-General v Gaskill (1882) 20 Ch D 519, 528. As a general rule, a party may interrogate its opponent as to every relevant matter on which the relevant witness could be examined if called as a witness at the trial: Dunmall v O'Sullivan [No 4] [2011] WADC 229 [25]; Spedley Securities Ltd (in Liq) v Yuill [No 4] (1991) 5 ACSR 758, 762; Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703, 709. 23 In the present case there is an independent legitimate forensic purpose for requiring Mr Marich to answer each interrogatory. Each interrogatory is a question of fact which Mr Marich could be asked when giving evidence. The fact that in answering the interrogatory the plaintiff will provide greater particularisation of the matters in the statement of claim is not a reason to deny leave to interrogate – every answer to an interrogatory will have this effect in one way or another. 24 As to the third ground, Mr Marich's counsel, in his written submissions, stated SSS 'through interrogatories seeks to obtain evidence to support or disprove the allegations set out in the pleadings … [which] is not the proper use of the process'. This is not a valid objection as the (Page 10)
sworn answer to an interrogatory is by its nature evidence able to be tendered at the trial of the action: RSC O 27 r 9; Rapid Metal Developments [8]; Dunmall [29]. The sworn answers 'are neither formal admissions nor conclusive evidence and it is open to a party to lead evidence inconsistent with the answers to interrogatories': Dunmall [29]; Fisher v Stapley [2005] WASCA 16 [1], [9], [35]. It is then for the court to consider all of the evidence, including the answers and the evidence which is inconsistent with them: Fisher [1], [9], [35]; Dunmall [29]. The interrogatory will, however, be objectionable if it goes only to credit or to test evidence: Dunmall [26]; Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44, 57. Likewise, it will be objectionable if it is directed to the evidence by which a material fact will be proved, as distinct from the fact itself: Hoad 476. None of these objections apply to interrogatories 1 to 5. 25 For these reasons, I am of the view that interrogatories 1 to 5 do relate to matters in question between SSS and Mr Marich and that there is a legitimate forensic purpose for SSS to ask them. In International Land Developments the Chief Justice observed that 'the range of forensic purposes that can be served by the administration of interrogatories is not closed' [4]. He continued: 26 The answers sought fall squarely within this description. 27 I am also of the view that the burden of answering them is proportionate to the forensic purpose for which they have been sought. Their subject matter is material which a prudent lawyer would in any event canvass with Mr Marich in course of preparing a detailed proof of evidence. (Page 11)
Interrogatory 6 28 Interrogatory 6 asks: 6. State on how many occasions you moved along the access way prior to the accident on the material date. 29 Mr Marich objects to answering this interrogatory on the basis that it is irrelevant and does not go to a matter in question between SSS and Mr Marich. 30 In its defence, SSS has pleaded contributory negligence against Mr Marich. The extent to which he moved along the access way prior to the accident on the material date is relevant to his knowledge of the existence of the scaffolding. Knowledge is a matter of fact and may be interrogated upon where relevant: Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASC 179 [13]; Rapid Metal Developments [10]. Further, the right to interrogate is not confined to 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 facts directly in issue: Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd (1912) 13 CLR 101; [1911] HCA 35, 112; Ugle [18]. This includes answers which, when taken with other facts, may assist in establishing a relevant fact by inference: Potter's Sulphide Ore 109 - 110; Morago [7]; Dunmall [24]. 31 The connection between the subject matter of the interrogatory and the issues between the parties must, however, be more than remote or speculative: Morago [8]; Potter's Sulphide Ore 110. In my view, interrogatory 6 answers this description. It is a question which Mr Marich could be asked in oral evidence. The answer will at least assist SSS in its claim of contributory negligence. There is a legitimate forensic purpose for asking it which outweighs minimal burden in answering it.
Interrogatory 7 32 Interrogatory 7 seeks answers relating to the occurrence of the incident pleaded as the cause of the personal injuries, in the following terms: 7. As to the matters pleaded in paragraph 13 of the Statement of Claim: 7.1 state what time you commenced work on the material date; (Page 12)
7.2 state the exact location that the accident occurred, including but not limited to: 7.3 state the precise process involved in inspecting pipe work; 7.4 state the precise way in which you moved along the access way and what you were doing as you moved along the access way (e.g. inspecting pipe work); 7.5 state the precise way in which the scaffolding materials were stacked/stored; 7.6 state on how many occasions you moved along the access at time of the accident on the material date; 7.7 state whether you checked the access way before moving along it; 7.8 state the precise way in which you disturbed the scaffolding materials; 7.9 state the precise way in which the scaffolding materials fell onto your left leg causing injury; 7.10 describe the access way in terms of its dimensions; 7.11 state whether you saw any items on the access way before the accident, and if so, describe what you saw; 7.12 state who owned the scaffolding materials; 7.13 state how much and what type of scaffolding material was stored/stacked; 7.14 state the description of the scaffolding materials, including length and approximate weight; 7.15 state whether the scaffolding materials were colour-coded, and if so, state the relevant colour; 7.16 state the length of time that the scaffolding materials had been stored/stacked on the access way prior to the accident; and 7.17 state what time the accident occurred on the material date; (Page 13)
33 Paragraph 13 of the statement of claim sets out the accident alleged to have caused Mr Marich's injuries. The subject matter of interrogatory 7 is thus an area on which SSS could have interrogated without the need for leave had it done so within the time set out in DCR r 47. 34 Mr Marich objected to answering this interrogatory on four grounds: (a) that it is objectionable as it is a request for further and better particulars; (b) that it seeks evidence, and not an admission of fact within Mr Marich's control or knowledge; (c) it would impose an unreasonable burden on him to answer it; and (d) the answer seeks further and better discovery, which is an impermissible purpose. 35 As to the first, the accident is described in brief terms in par 13 of the statement of claim. Mr Marich has not filed further and better particular of the accident. However, as I have already observed, the fact that in answering the interrogatory Mr Marich will provide greater particularisation of the matters in the statement of claim is not a reason to deny leave to interrogate. 36 As to the second ground, I have already observed that the fact that an interrogatory will elicit an answer which may be used as evidence is not a valid objection to the answering it. 37 However, some of the interrogatories may require Mr Marich to answer questions outside his knowledge. In my view, this is a valid objection to interrogatories 7.12 to 7.16. The subject matter of these interrogatories is nevertheless relevant and the defect can be cured by limiting the question to what Mr Marich either knew or observed. 38 Also, the meaning of the reference to 'the cardinal direction' in interrogatory 7.2.3 is not self-evident. It is an inclusive reference. It can be deleted without impacting on the overall answer, and should be. 39 The third ground is that the questions posed are extremely precise and likely to cause a significant burden to Mr Marich in attempting to answer them. Whilst the questions are precise, in this case, it aids in the simplicity of the required answers. If Mr Marich does not know the answer, has can simply say that, as he would if asked the question in cross-examination. (Page 14)
40 As to the fourth ground, an interrogatory cannot be used to attempt to obtain further and better discovery of documents, usurping the usual procedures in relation to this issue: Hoad 480 - 481. However, in my view the interrogatory 7 is not being used for the purpose of obtaining further and better discovery. All that is required is for Mr Marich to answer the questions as he would if giving evidence. Once limited as set out in [37] above, the interrogatories asked will produce answers of a kind which would have been admissible had Mr Marich given in oral evidence on the issues at the trial: Tipperary Developments Pty Ltd [12]; Rapid Metal Developments [10]. 41 In my view these interrogatories relate to matters in question between SSS and Mr Marich. There are a number of legitimate forensic purposes for SSS to ask them. One is that the answers may be used is to facilitate SSS obtaining expert evidence in relate to the safety or otherwise of the system of work adopted by it and the other defendants. This is put in issue by Mr Marich in the particulars of breach (see [50] below). The answers will assist in the efficient disposition of the action as they will enable SSS to obtain expert evidence, and otherwise prepare its defence, knowing the evidence Mr Marich will give at trial on these matters. 42 Given the centrality of the issue to which they relate, I am also of the view that the burden of answering the questions comprising interrogatory 7 is proportionate to the forensic purpose for which they have been sought. Their subject matter is material which a prudent lawyer would in any event canvass with Mr Marich in course of preparing a detailed proof of evidence.
Interrogatory 8 43 Interrogatory 8 relates to a specific aspect of the circumstances of the accident, providing: 8. On the material date, did Hitachi have a colour-code for its equipment at the project? If so, please state the colour used. 44 I accept the submission by counsel for Mr Marich that its subject matter does not relate to any matter in issue between Mr Marich and SSS. There is no reference to colour-coded equipment in either Mr Marich's statement of claim or SSS's defence. If this issue is of particular significance to the circumstances of the accident, it will be picked up in the answer to interrogatory 7.15 (quoted above [32]). (Page 15)
45 In my view, this interrogatory is 'fishing' and ought not to be allowed.
Interrogatory 9 46 Interrogatory 9 asks about whether there were any other tradespeople working in the relevant area: 9. On the material date were there any other tradespeople working in the boiler area in or around the location where the accident occurred? If so, please state: 9.1 what work the tradespeople were carrying out; 9.2 how many tradespeople were working in the boiler area in or around the location where the accident occurred; 9.3 where exactly the tradespeople were working in the boiler area; 9.4 whether the tradespeople were working in or around the area where the scaffolding materials were stored/stacked; and 9.5 who the tradespeople were employed by. 47 I agree with the submission by counsel for Mr Marich that the facts sought in the answer do not relate to any matter in dispute between Mr Marich and SSS. In the statement of claim, Mr Marich does not refer to any other people as being in the relevant area at the time of his accident. Neither does SSS in is defence. If another person was involved in the accident, this will emerge from the answers to interrogatory 7. 48 In my view, this interrogatory is 'fishing' and ought not to be allowed. It is also objectionable to the extent that it asks Mr Marich to provide information beyond his direct knowledge.
Interrogatory 10 49 Interrogatory 10 seeks answers to questions about the breach of duty of care asserted, as follows: (Page 16)
10.2 describe the system that should have been in placed to stop you from carrying out the task while unsecured scaffolding was on the access way; 10.3 provide the usual particulars in respect of your warnings to others of the poor housekeeping by the fourth defendant and others on the project; 10.4 describe the system that should have been in place with respect to inspecting and housekeeping before allowing/sending you onto the access way in the boiler area; and 10.5 describe what system of supervision of you and other workers should have been in place. 50 Paragraph 14 of the statement of claim provides: The incident was caused by the breach of the common law and/or statutory duty of care by the First and/or Second and/or Third and/or Fourth Defendants, their employees, servants or agents in that the First and/or Second and/or Third and/or Fourth Defendants:
PARTICULARS OF BREACH OF DUTY OF CARE
(a) Failed to provide a clear access way for the Plaintiff to carry out the task. (b) Failed to secure and/or remove the scaffolding from the access way. (c) Failed to institute a system to warn the Plaintiff of the danger of the scaffolding falling on him. (d) Failed to institute a system to stop the Plaintiff from carrying out the task while the unsecured scaffolding was on the access way. (e) Failed to heed warnings from the Plaintiff and others as to poor housekeeping by the Fourth Defendant and others on the project. (f) Failed to carry out inspections and housekeeping before allowing/sending the Plaintiff onto the access way in the boiler area. (g) Failed to supervise adequately or at all the Plaintiff and other workers. (h) Failed to supervise the employer and/or Fourth Defendant in relation to those things specified in (a) – (g) above. (Page 17)
51 Mr Marich objects to answering interrogatory 10 on the basis that it is in substance a request for further and better particulars. 52 In my view, interrogatories 10.1. 10.2, 10.4 and 10.5 raise issues which ought to be the subject of an application for further and better particulars, as opposed to interrogatories. The purpose of the questions is to seek to more information about Mr Marich's claim: Dow Corning [18], [39], [40]. 53 Moreover, the issue of what SSS should have done is not one on which Mr Marich could give oral evidence. It is a question of expert evidence. 54 An exception is interrogatory 10.3 as this is an area on which Mr Marich could have given admissible evidence in oral examination. He has specifically particularised that the defendants 'failed to heed warnings from [him] and others as to poor housekeeping by [SSS] and others on the project'. The interrogatory is limited to his warnings. It ought to be allowed.
Interrogatory 11 55 Interrogatory 11 asks questions about the relevant aspects of Mr Marich's medical history in the 5 years prior to the accident. It is limited to the pleaded injuries being the left shin and left knee. This subject matter is one of the areas within DCR r 47. 56 Mr Marich objected to answering the questions in interrogatory 11 on four grounds: (a) they are a fishing expedition; (b) they require Mr Marich to give a medical opinion; (c) they ask for information which may be found in discoverable documents and are thus unnecessary; and (d) answering them would impose an unreasonable burden on him. (Page 18)
57 As to the first ground, the subject matter of the interrogatory plainly relates to a matter in issue between Mr Marich and SSS. 58 As to the second ground , I do not agree with the submission by counsel for Mr Marich that in order to answer these questions Mr Marich will have to provide a medical opinion. The issues of symptoms and treatments are issues of fact on which he could give in oral evidence at the trial, and are thus appropriately the subject of an interrogatory. 59 In relation to ground 3, the interrogatories do not seek to usurp or go behind the information in the discovery. It is not being used to secure further and better discovery. What is being sought is information, not documents. 60 In relation to necessity, in Brewer v Colonial Portfolio Services Pty Ltd [2007] WASC 22, at [18] Master Sanderson commented that the aim of case management principles in the context of an application for leave to interrogate is 'to limit interrogatories to only those cases where they are strictly necessary thus avoiding expense and delay'. He also observed that most cases in the Supreme Court proceed on the basis of each party providing witness statements before trial, which should reduce the need for interrogatories. 61 In my view, the fact that some of the information sought to be obtained may be found in discovered documents is not of itself a reason for disallowing the interrogatory. The subject matter of each question is one which Mr Marich could be asked about when giving oral evidence at the trial. In contrast to the Supreme Court, the usual practice of the District Court is not to order the provision of witness statements in personal injuries cases. Moreover, any information provided by Mr Marich recorded in a discovered medical report or like document will be hearsay and may need to be formally proven (which may occur through an answer to an interrogatory). This does not always occur - see for example, Robertson v Chase [2012] WADC 131 [121] - [123]. 62 Further, to limit the interrogatories to the areas not dealt with the particulars or discovery would lead to the provision of a piecemeal response. 63 As to the final ground, in my view, the burden of answering the questions comprising the interrogatory is proportionate to the forensic purpose for which they have been sought. Their subject matter is material which a prudent lawyer would in any event canvass with Mr Marich in course of preparing a detailed proof of evidence. (Page 19)
Interrogatories 12 and 13 64 Interrogatories 12 and 13 ask questions about Mr Marich's symptoms and treatment of the injuries pleaded in the statement of claim, being his left shin and left knee. This subject matter is one of the areas within DCR r 47. It plainly relates to matters in dispute between Mr Marich and SSS. For the reasons set out in relation to interrogatory 11, the fact that some of the information sought to be obtained may be found in discovered documents is not of itself a reason for disallowing the interrogatory. The burden of answering the questions comprising the interrogatory is proportionate to the forensic purpose for which they have been sought. Their subject matter is again material which a prudent lawyer would in any event canvass with Mr Marich in course of preparing a detailed proof of evidence.
Interrogatories 14 to 18 65 Interrogatories 14 to 18 ask questions about Mr Marich's work capacity before and after the accident. To the extent that it asks about his employment history in the 5 years prior to the accident, subject matter is one of the areas within DCR r 47. It plainly relates to matters in dispute between Mr Marich and SSS. 66 Mr Marich has filed particulars of damages which deal with some of the areas covered in the interrogatories. He has also provided discovery of documents which deal with some of the areas covered in the interrogatories. As I have set out above, this is not a reason for not allowing the interrogatory. 67 Moreover, the provision of the answers will facilitate SSS's lawyers forming a view as to the likely measure of damages should Mr Marich be successful on liability. This is significant information for it to have prior to the upcoming pre-trial conference. 68 The fact that particulars have been filed and discovery given means that Mr Marich's solicitors have at hand the material with which to draft at least some of the answers. The remaining issues are ones on which a prudent lawyer would have already obtained instructions on, or would be planning to, in preparation for the upcoming pre-trial conference. These points support my view the burden of answering the questions comprising interrogatories 14 to 18 is proportionate to the forensic purpose for which they have been sought. (Page 20)
Summary 69 For these reasons, I am of the view that Mr Marich ought to be ordered to answer: 70 I will hear from counsel as to the form of the final orders, including the timing of the provision of the answers and costs. The order should include a requirement for SSS to file and serve interrogatories amended in accordance with these reasons, renumbered to remove the questions for which leave has not been granted. 71 I will also hear from counsel as to whether it is appropriate that I order the provision of further and better particulars of par 14 of the statement of claim along the lines set out in the balance of interrogatory 10. There will also be a need to adjust the entry for trial milestone.
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