Patten v CPT Manager Limited T/As Centro Flinders - [2014] WADC 158

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PATTEN -v- CPT MANAGER LIMITED T/AS CENTRO FLINDERS [2014] WADC 158

CORAM: SLEIGHT DCJ

HEARD: 13 OCTOBER 2014

PUBLISHED : 17 NOVEMBER 2014

FILE NO/S: CIV 3486 of 2013

BETWEEN: DEBBIE PATTEN
Plaintiff
AND
CPT MANAGER LIMITED T/AS CENTRO FLINDERS
First defendant
AIRLITE CLEANING PTY LTD
Second defendant

Catchwords:

Practice and procedure - Appeal against order dismissing application for leave to administer interrogatories - Turns on its own facts

Legislation:

District Court Rules 2005
Rules of the Supreme Court 1971 (WA)

Result:

Appeal allowed
Leave given to administer interrogatories

Representation:

Counsel:

Plaintiff:     Mr V Kurup
First defendant              :     No appearance
Second defendant          :     Mr SM Denman

Solicitors:

Plaintiff:     CLP Lawyers
First defendant              :     Not applicable
Second defendant          :     Denman Popperwell

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

Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Marich v IHI Engineering Australia Pty Ltd [2013] WADC 19

SLEIGHT DCJ: This is an appeal against a decision of Deputy Registrar Hewitt to refuse leave to the second defendant to administer interrogatories on the plaintiff. The appeal was heard on 13 October 2014 and was allowed by me. I indicated that I would publish reasons at a later date. These are the reasons for my decision.

Background

The plaintiff, Ms Patten, is a disabled person who is wheelchair bound. On 22 March 2011 she went to the disabled toilets in a shopping centre in Yokine, known as the Centro Flinders Shopping Centre. The first defendant is the owner or occupier of the premises. The second defendant, Airlite Cleaning, is a cleaning company employed by the first defendant.
The plaintiff entered the disabled toilets of the shopping centre and alleges that while she was attempting to move from her wheelchair to the toilet seat, she slipped on a wet floor and fell heavily causing injury.
Both defendants deny liability.

Relevant history of proceedings

The plaintiff commenced proceedings by a writ of summons on 28 October 2013. A statement of claim was filed on 23 January 2014 and served on the second defendant's solicitors by letter on 29 January 2014.
The statement of claim poorly pleads the plaintiff's claim against the second defendant. There is no pleading of the basis of the second defendant's alleged duty of care other than to plead that the second defendant provided cleaning services to the first defendant and that the plaintiff's injuries, loss and damage were caused by the negligence of the first defendant. The particulars of negligence are generic in form pleading such things as 'failing to ensure the premises is [sic] reasonably free from hazards'; 'failing to provide adequate warning' and 'failing to take all reasonable and necessary measures to avoid injury to the plaintiff'.
The statement of claim pleads the following description of the incident:
1.On 22 March 2011, the plaintiff visited the first defendant's premises. The plaintiff entered the disabled toilet in the shopping centre in her wheelchair. The floor was wet as she was attempting to move from her wheelchair to the toilet seat, she slipped on the wet floor and fell hard hitting her head and abdomen on the footplate of her wheelchair and landing on her buttocks and back, impact in the floor.
2.The plaintiff was unable to move or get out of the toilet. She was in the cubicle for one hour screaming to attract the attention of any passer‑by.
3.The plaintiff's screams for help alerted a lady, who called for help. Some workers came and removed the door to the cubicle to get the plaintiff out of the cubicle. One of the workers hit the cistern and the flow of water stopped.
It is significant that the plaintiff did not plead that the floor was wet when she entered the disabled toilets but only that it was wet at the time she was attempting to move from her wheelchair to the toilet seat.
The second defendant filed a defence on 10 February 2014 denying any breach of duty care. The second defendant also filed a request for further and better particulars which the plaintiff's solicitors responded to by filing further and better particulars on 28 March 2014. These further and better particulars provided particulars as follows:
Request 1
Under paragraph 6
1.At what time of the day is it alleged that the Plaintiff entered the disabled toilet?
2.Describe the liquid which the Plaintiff alleges made the floor wet, including:
(a)Its size and colour;
(b)What it was (if known).
3.Did the Plaintiff see the liquid on the floor before she alleges that she slipped on it?
4.Describe the Plaintiff's movements as she was attempting to move from her wheelchair to the toilet seat, including how the allegedly wet floor caused her to slip.
Answer 1
1.To the best of the Plaintiff's recollection, it was at or about 11:50am.
2.It was a clear liquid
(a)Large and clear given the saturation of the Plaintiff's clothing.
(b)It was liquid.
3.The Plaintiff did not see the liquid as the tiles in the cubicle were dark grey in colour and visibility was reduced.
4.The Plaintiff stood up holding the arm rest on her wheelchair and when moving to sit on the toilet seat her leg slipped on the liquid on the floor and she fell to the floor.
Request 2
Under paragraph 8
5.In relation to the allegation that the flow of the water stopped after one of the workers hit the cistern:
(a)From where is it alleged that the water was flowing?
(b)To where is it alleged that the water was flowing?
(c)Is it alleged that the flowing water was the cause of the floor being wet?
(d)Was the water flowing at the time that the Plaintiff entered the disabled toilet?
(e)If no to (d) above, what caused the water to start flowing and when?
Answer 2
5.
(a)The Plaintiff Infer that the water was flowing from the Cistern by virtue of the fact that when a worker struck the Cistern the flow of liquid stopped.
(b)Flowing onto the floor.
(c)Yes.
(d)The Plaintiff infers that it was given the body of water when she fell on it.
Request 3
Under paragraph 11
6.To what extent is it alleged that the second defendant knew of a hazard at the premises, provide full particulars of all matters relied upon to support the allegation the second defendant had that knowledge.
7.To what extent is it alleged that the second defendant ought to have known of a hazard at the premises, provide full particulars of all matters relied upon to support the allegation that the second defendant ought to have had that knowledge.
8.Specify what further measures it is alleged were reasonably and necessarily required of the second defendant in order to identify and rectify hazards at the premises.
9.Specify in what respects it is alleged that the disabled toilet cubicle was faulty.
10.Specify in what respects it is alleged that the cistern within the disabled toilet cubicle was dysfunctional.
11.Specify in what respects it is alleged that the second defendant's cleaning services were not adequate or competent, including what was reasonably required of the second defendant in order for its services to be adequate and competent.
Answer 3
6.There is no allegation in paragraph 11 under particulars of negligence that the second defendant knew of the hazard.
7.The Second Defendant knowing that the toilet was to be used by disabled persons needed to exercise care to ensure that the premises were properly cleaned and devoid of substances which could prevent the safe transfer of people with disability.
8.Regular inspection of the disabled toilet would have alerted the second defendant's servant and agent that there was water on the floor of the cubicle and they could have put up warning signs and sealed off the toilet until the hazard was removed.
9.There was water on the floor of the cubicle and the Plaintiff infers that water was flowing from the cistern as a worker banged on the cistern and the flow of water stopped.
10.The Plaintiff infer that water was flowing from the cistern as the flow of water stopped when the worker banged on the cistern.
11.The disabled toilet was last checked by the second defendant's servant and agent at 10:58am. The Plaintiff slipped and fell at 11:50am. No inspection and cleaning of the disabled toilet were carried out after 10:58am to the time the Plaintiff fell, for 52 minutes. The disabled toilet should have been checked and cleaned every 15 Minutes or less. The second Defendant was in breach of their contract with the First Defendant.
The effect of these further and better particulars is that the plaintiff's case as pleaded is that the second defendant was contractually obliged to inspect the disabled toilets every 15 minutes or less; the last time the second defendant's staff inspected the toilet was at 10.58 am; that no checking or cleaning of the disabled toilets took place for 52 minutes before the plaintiff fell at 11.50 am; and that the second defendant was in breach of a duty to conduct regular inspection of the disabled toilet, which if it had been carried out would have alerted the second defendant's servant and agents that there was water on the floor of the cubicle.
However the further and better particulars filed by the plaintiff raise a number of pertinent factual issues.
Firstly, in response to the request for further and better particulars contained in par 5(d) of the request, the plaintiff does not state whether the water was flowing onto the floor as alleged at the time the plaintiff entered the disabled toilet. Instead, the plaintiff simply says she infers that it was present at the time she entered the disabled toilet given the body of water when she fell. This response necessarily raises issues about whether the plaintiff may have engaged in activities (such as turning on a tap in the basin or operating the cistern in the cubicle) before she fell which caused the overflow of water onto the floor.
Secondly, the records of the second defendant suggest that its staff attended in response to the plaintiff's call for help at about 11.55 am. Given the plaintiff's pleading in par 7 of the statement of claim that she was in the cubicle for one hour before persons came to her assistance, the records of the second defendant suggest that the plaintiff may have entered the disabled toilets shortly after they had been inspected by the second defendant's staff and prior to a further inspection being due.
On 9 April 2014 the second defendant's solicitors wrote to the plaintiff pointing out that the pleaded case of the plaintiff that the incident occurred at 11.50 am and that the plaintiff was in the cubicle for one hour before assistance arrived was inconsistent with the second defendant's records which indicated their staff attended in response to the incident at 11.55 am.
On 7 July 2014 the second defendant's solicitors served on the plaintiff's solicitors by facsimile interrogatories, a copy which is annexed to this decision marked with the letter 'A'. The plaintiff declined to answer these interrogatories on the basis that leave was required. An application was then made by the second defendant's solicitors by chamber summons dated 25 July 2014 which was returnable on 14 August 2014.
On 7 August 2014, prior to the hearing of the second defendant's application for leave to administer interrogatories, the plaintiff's solicitors filed an amended statement of claim deleting in par 7 the wording 'for 1 hour'. However this amendment did not remove the factual issues identified above arising from the further and better particulars filed by the plaintiff.
By way of further background it should be noted that the second defendant had been very tardy in providing discovery which caused the plaintiff's solicitors to file an application by chamber summons dated 15 July 2014 seeking an order for discovery. This chamber summons was also returnable before the court on 14 August 2014 but the day before the chamber summons was heard the second defendant provided discovery.

General principles

A convenient summary of the relevant law in relation to interrogatories in the District Court is contained in the decision of Principal Registrar Gething in the matter of Marich v IHI Engineering Australia Pty Ltd [2013] WADC 19 from which I extrapolate the following:
1.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.
2.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.
3.The District Court Rules (DCR) 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 five 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 five years prior to the accident.
4.The fact that the interrogating party 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. It may be appropriate for a party to delay administering interrogatories beyond the time period prescribed by DCR r 47 until after the other party has provided further material, such as by giving discover.
5.The administering and answering of well drafted interrogatories can facilitate meaningful negotiations taking place at a pre-trial conference.
6.Interrogatories will not be ordered for the purpose of requiring a party to provide further and better particulars of its case. 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'. 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. 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.
The purpose of the requirement that leave be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose, and, also, that the burden of answering them be proportionate to the forensic purpose to be served. The range of forensic purposes that can be served by the administration of interrogatories is not closed. It includes gathering information in relation to events which are outside the knowledge of the party, and which can be assumed to be within the knowledge of the party to whom interrogatories are administered. This is a legitimate forensic purpose because it assists the administration of justice by enabling a party to adduce evidence of facts that are not within their ordinary knowledge. However, that forensic purpose is subject to the principles that have been established with respect to fishing. It is not fishing if the questions are directed to an issue raised by the pleadings: see Kendall and Curthoys Civil Procedure Western Australia [27.1.1 and 27.1.10].
There may well be a differing practice in the Supreme Court of Western Australia and the District Court of Western Australia concerning interrogatories. In the Supreme Court of Western Australia it is now common practice to order that there be an exchange of witness statements prior to trial. This provides a mechanism to understand the case of each party and thereby reduce the need for interrogatories: Dalecoast Pty Ltd v Monisse & Ors [1999] WASCA 103 [5] ‑ [6] (Owen J). In the District Court of Western Australia the practice of requiring the service of a witness statement is less frequent.

Conclusion

The application of the second defendant's for leave to administer interrogatories was heard on 14 August 2014 in a General Chambers list by the deputy registrar and, unfortunately, I do not have the benefit of the transcript of any oral reasons given by the deputy registrar for dismissing the application. However, the hearing of the appeal is a hearing de novo and I do not believe I am seriously disadvantaged by not having the deputy registrar's reason for decision before me. The plaintiff maintains on the hearing of the appeal the same submissions made before the deputy registrar.
An affidavit filed by the plaintiff's solicitors in opposition to the application of the second defendant for leave raised the following grounds for opposing the application (which are the same submissions presented on the appeal), namely:
1.The second defendant had failed to give discovery in a timely way.
2.The plaintiff, who is wheelchair bound, would experience hardship if she was required to answer interrogatories.
3.The proposed interrogatories are similar to the material covered by the second defendant's request for further and better particulars to which the plaintiff has given a response.
4.The second defendant has not provided any cogent reasons for the delay in serving the interrogatories.
5.The second defendant has not given any reason to show that the answer to the interrogatories will assist in the fair disposal of this matter.
I reject each of the submissions of the plaintiff's solicitor.
Firstly, although the second defendant failed to give discovery within the time limits set, discovery had been given prior to the application for leave to administer interrogatories came before the deputy registrar and I see no reason why this delay in giving discovery should preclude the second defendant from obtaining leave to administer interrogatories.
Secondly, although I accept that Ms Patten is wheelchair bound, there is no evidence before the court to conclude that attending her solicitors and providing answers to interrogatories will cause any significant hardship.
Thirdly, I do not accept that the issue raised by the interrogatories are equivalent to the matters already answered in further and better particulars. As detailed earlier in this decision, the interrogatories go to factual issues which emerge from the further and better particulars filed by the plaintiff. Further, as stated above, seeking further and better particulars serves a different purpose to seeking answers to interrogatories. That is clearly evident by the nature of the interrogatories in this case.

Fourthly, I believe that the second defendant has provided cogent reasons for the delay that has occurred. The second defendant's submissions are that it was reasonable to delay issuing interrogatories until after further and better particulars were obtained. It was only on receipt of the further and better particulars that the need for interrogatories became evident. Initially the second defendant's solicitors sought to have these interrogatories answered by consent but when this was not achieved the second defendant solicitors then filed an application. I do not believe that the delay was significant and I believe it has been adequately explained.
Fifthly, I believe that the proposed interrogatories will assist in the fair disposal of the matter. In any claim based upon a slip and fall allegation, the question of liability involves consideration of the adequacy of, and the compliance with, the occupier's system for inspection and cleaning of the premises. Necessarily that analysis can only be carried out after a finding as to what was the time of the alleged accident and what opportunity the second defendant had to observe any moisture on the floor and take steps to remove it. In this case there is sufficient material to raise uncertainty about when the incident occurred so as to justify interrogating on this question. Also in view of the uncertainty raised by the plaintiff's further and better particulars of claim as to state of the premises when the plaintiff entered the disabled toilets, it is not unreasonable to administer interrogatories as to whether the plaintiff did anything to the cistern or the sink in the toilet which may have contributed to there being water on the floor prior to the plaintiff's fall.
In summary, in my opinion the proposed interrogatories are reasonable given the issues that have emerged following the filing of further and better particulars by the plaintiff. They are not prolix, oppressive or unnecessary. In fact I believe they are succinct and directly to issues between the parties.
For the above reasons I allow the appeal and set aside the order of the deputy registrar dismissing the second defendant's application. I make further orders as follows:
1.The second defendant have leave to serve interrogatories in accordance with the minute of proposed interrogatories filed on 25 July 2014.
2.Within 21 days the plaintiff file and serve an affidavit containing answers to the interrogatories.
3.The costs of the appeal and the application be in the cause.

Annexure A

TAKE NOTICE that the second defendant requires the plaintiff to answer the following interrogatories on oath within 14 days of service hereof:
1.At what time of the day on 22 March 2011 did you enter the disabled toilet at the Centro Flinders Square Shopping Centre ('the Disabled Toilet')?
2.Did you fall to the floor at some stage after entering the Disabled Toilet on 22 March 2011?
3.If yes to the preceding interrogatory:-
(a)how long after you entered the Disabled Toilet did you fall to the floor?
(b)exactly what did you do after entering the Disabled Toilet but before you fell to the floor?
(c)what were you doing at the time that you fell to the floor?
(d)from where did you fall?
(e)what caused you to fall to the floor?

4.Was the toilet flushing when you entered the Disabled Toilet?
5.Did you flush the toilet at any stage after entering the Disabled Toilet?
6.If yes to the preceding interrogatory, did you flush the toilet before or after you fell to the floor?
7.Was a tap in the basin running when you entered the Disabled Toilet?
8.Did you turn on a tap in the basin at any stage after entering the Disabled Toilet?
9.If yes to the preceding interrogatory, did you turn on a tap in the basin before or after you fell to the floor?
10.Did you notice any water or other liquid on the floor of the Disabled Toilet before you fell to the floor?
11.If yes to the preceding interrogatory, describe what and where it was.
12.Did you notice any water or other liquid on the floor of the Disabled Toilet after you fell to the floor?
13.If yes to the preceding interrogatory, describe what and where it was.
14.Did you lose consciousness after you fell to the floor?
15.Did you call out for assistance after you fell to the floor?
16.If yes to the preceding interrogatory, for what period of time did you call out for assistance?
17.Did a cleaner or other worker enter the Disabled Toilet after you fell to the floor?
18.If yes to the preceding interrogatory, at the time that the cleaner or other worker first entered the Disabled Toilet, how much time had passed since:-
(a)you first entered the Disabled Toilet?
(b)you fell to the floor?
(c)you started calling out for assistance?