Searle v Minister for Health for the State of Western Australia

[1999] WADC 108

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SEARLE -v- MINISTER FOR HEALTH FOR THE STATE OF WESTERN AUSTRALIA [1999] WADC 108

CORAM:   REGISTRAR KINGSLEY

HEARD:   30 SEPTEMBER 1999

DELIVERED          :   26 NOVEMBER 1999

FILE NO/S:   CIV 1040 of 1999

BETWEEN:   SURINDER KAUR SEARLE

Plaintiff

AND

MINISTER FOR HEALTH FOR THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice - Defendant's application for further and better particulars - Turns on own facts.  Plaintiff's application to strike out particulars of defence - Turns on own facts.

Legislation:

Nil

Result:

Defendant's application for further and better particulars allowed in part.  Plaintiff's application for further and better particulars allowed in part.

Representation:

Counsel:

Plaintiff:     Mr A Jenshel

Defendant:     Mr G Porter

Solicitors:

Plaintiff:     L Cohen & Co

Defendant:     Talbot & Olivier

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

Nil

Case(s) also cited:

Ridgeway & Ors v Bullock & Ors, unreported; SCt of WA; Library No 7892; 19 October 1989

1. REGISTRAR KINGSLEY:  Both the plaintiff and defendant have brought applications in relation to particulars.  The plaintiff's application dated 11 August 1999 seeks that certain particulars of defence be struck out and also seeks further and better particulars of defence.  The defendant's application is dated 16 August 1999 and seeks that the plaintiff provide further and better particulars in accordance with the defendant's request dated 30 July 1999. 

2. The plaintiff's cause of action arises out of personal injury allegedly caused on 25 November 1996.  The plaintiff pleads that in the course of her employment she was required by her supervisor to transfer a patient from a treatment table to a wheelchair.  In performing that transfer the plaintiff suffered injury which the plaintiff alleges was caused by the negligence of the defendant. 

3. The allegations of negligence by the plaintiff are that the defendant required the plaintiff to manually lift and transfer the patient when it was manifestly unsafe having regard to the significant weight of the patient and the relatively high risk of back injury associated with that task; the defendant failed to properly co-ordinate the lift so there was an even distribution of weight between the plaintiff and her supervisor, and further, failed to facilitate the lift by using a lifting hoist.

4. In its defence the defendant denies negligence, says the plaintiff was only employed on a temporary basis and at para 4 of the defence, contends that any injury loss and damage were caused or were materially contributed by the plaintiff's own negligence, her failure to mitigate her loss and her psychosocial circumstances.

5. The object of particulars is to place the opposite party in possession of the broad outline of the case it is called upon to meet, together with the constitutive facts which are said to give rise to the legal liability.  In essence there are two principles in relation to particulars of pleadings, firstly, they inform the opponent of the case to be met at hearing and, secondly they limit the generality of the pleadings.  Upon particulars being given a party then knows each material fact on which the other party relies and they are able to prepare their brief and not be taken by surprise.

Plaintiff's Application dated 11 August 1999

1. As to para 4 of the defence the plaintiff sought particulars of the alleged negligence of the plaintiff said to have caused materially contributed to her injuries, particulars of all matters supporting the allegation that the plaintiff failed to mitigate her loss and particulars of all matters in support of the proposition of the plaintiff's psychosocial circumstances caused or materially contributed to the injuries.

2. The plaintiff's chamber summons dated 11 August 1999 seeks that particulars 1(a), (a) to (e), and 1(c)(iii) of the defence be struck out and that particulars 1(a), (f)(b), 1(b)(i) and 1(b)(iii) ought be further particularised.

3. Request 1(a) of the plaintiff's request seeks particulars of the negligence of the plaintiff said to have caused or materially contributed to her injuries.  That the plaintiff had studied physiotherapy, had considerable experience working as a physiotherapist and the other matters detailed in the defendant's answers (a), (b), answers (c), (d) and (e) are in my opinion irrelevant to that question.  The only relevant particular to that issue is answer (f) and accordingly answers (a) to (e) inclusive are struck out.

4. In relation to the plaintiff's request 1(b), I am of the opinion that (b)(i) and (ii) do provide facts or circumstances supporting the allegation the plaintiff failed to mitigate her loss.  However answer (b)(iii) in its present form is embarrassing to the plaintiff and ought be struck out.

5. Turning to the plaintiff's request 1(c), I am of the opinion that the answers given by the defendant are too wide.  Particulars govern the range of evidence:  in its strict form the particulars define the extent of admissible evidence; in a less strict fashion they modify the cause of action by explaining details of material allegations and detail the issues of fact to be investigated at trial.  In my opinion the answers given by the defendant are too vague to be of any worth in defining the issues of fact to be investigated at trial.  In my opinion answer 1(c) ought to be struck out.

6. As for costs on the plaintiff's application, as the plaintiff has been substantially successful, the defendant ought to pay the plaintiff's costs.

Defendant's Application for Further and Better Particulars

1. The defendant served a request for further and better particulars of statement of claim in a document dated 14 June 1999.  The defendant required the plaintiff within 10 days of service to provide the answers.  In a second document dated 30 July 1999 the defendant made a further request of the plaintiff for further and better particulars of her statement of claim.  The defendant sought to explain the basis of the second request by letter dated 16 August 1999, received by the plaintiff on 17 August 1999, and requested that the plaintiff answer the second request within seven days.  However on 16 August 1999 the defendant filed the present application.  The plaintiff's counsel submits that the statement of claim ought be particularised but not pursuant to the defendant's request dated 30 July 1999.

2. I am of the opinion that paragraph 1(a) of the defendant's request is embarrassing in that there are a number of requests contained within that subparagraph.  Further, the manner in which the request has been stated makes it difficult for the plaintiff to comprehend what is being asked of her.  By disallowing request 1(a) the balance of request falls away.

3. As to para 2 of the defendant's request, I am of the opinion that paras 2(a) and (b) are appropriate.  The allegation by the plaintiff is that there was a lack of co-ordination of the lift of the patient and it is appropriate that this allegation be particularised.  However, I do not see the plaintiff's function being to redesign the defendant's system of work and accordingly paras (c), (d) and (e) of para 2 are not allowed.  For the same reasons I am of the opinion that paras 3(a) and (b) and 4(a) and (b) are proper but that (c), (d) and (e) of each respective paragraph of the request is an improper request and will be disallowed.

4. As for para 5 of the defendant's request, the plaintiff objects to subparas (b) and (c) in that they require the plaintiff to provide a diary of their life experience.  I am of the opinion that subparas (b) and (c) go beyond what is reasonably required in request of particulars and will be disallowed.

5. As for para 7 of the defendant's request I am of the opinion that it is appropriate for the plaintiff to state what is the extent of future economic loss claimed, accordingly para 7 is allowed.

6. As to para 9 of the defendant's request, I am of the opinion the answers to subparas (a) and (b) will provide the necessary detail requested in para (c).  Accordingly subpara (c) is disallowed but the balance of para 9 is allowed.

7. In relation to the costs of the defendant's application, costs at this stage are reserved.  The defendant is to file and serve any affidavit within seven days of publication of these reasons together with brief submissions as to why costs ought be allowed and the plaintiff is to file any answering affidavit within three days of service of the defendant's affidavit together with brief submissions on the question of costs.  Unless either party seeks to supplement their written reasons by argument, notice by letter to be given within 10 days, I intend to deal with the question of costs of the defendant's application on the papers.