Squires, Gregory v Australian Casualty and Life Limited

[1998] TASSC 117

117/1998

PARTIES:  SQUIRES, Gregory
  v
  AUSTRALIAN CASUALTY & LIFE LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  118/1997
DELIVERED:  29 September 1998
HEARING DATE/S:  28 September 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  G Jones
           Respondent:  S B McElwaine
Solicitors:
           Applicant:  Page Seager
           Respondent:  S B McElwaine

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  117/1998
Number of pages:  3

Serial No 117/1998
File No 118/1997

GREGORY SQUIRES v AUSTRALIAN CASUALTY & LIFE LIMITED

REASONS FOR JUDGMENT  COX CJ

29 September 1998

The plaintiff has sued the defendant on a contract of insurance by which the defendant, it is alleged, undertook to make monthly payments to him, if in consequence of injury or sickness, he sustained total disability.  For the purposes of the policy the statement of claim alleges that the policy provided that:

"'Total disability' means the continuous inability of the Plaintiff by reason of injury or sickness during the first two years of a period of disability to perform each and every duty of his occupation and beyond the first two years of such period of disability, to perform any gainful occupation for which he is reasonably suited by education, training or experience."

The plaintiff claims he suffered injury causing total disability sometime prior to 11 November 1993, and that he continues to be totally disabled.  The defendant admits that the plaintiff was unable to perform each and every duty of his occupation between 12 January 1994 and 11 January 1996, and that the disability allowance mentioned in the policy was paid from 12 January 1994 to 11 August 1996.  It further pleads in the defence that by a letter dated 19 September 1996 it wrote to the plaintiff and advised the plaintiff that the plaintiff was capable of performing duties for which he was suited by education, training and experience, and therefore could not any longer be considered totally disabled in accordance with the policy terms and conditions.  The crucial issue is whether or not the plaintiff since 12 August 1996, has been totally disabled in the sense that he has been continuously unable to perform any gainful occupation for which he is reasonably suited by education, training or experience.

The defendant has delivered interrogatories which the plaintiff has partly answered but which he objects to answer further.  The defendant seeks an order that he does so.

The first interrogatory and its answer are as follows:

"INTERROGATORY NO. 1

Since the 19^th September 1996 let the plaintiff state whether and if so why and between what dates he has been hindered, disabled, or precluded from:

(a)     carrying out any occupation or employment of the type in which he had previously engaged.

(b)     carrying out any other, and what, employment;

(c)     carrying out any, and what, occupation;

(d)     carrying out or participating in any, and what:

(i)      recreation;

(ii)     hobby;

(iii)     sport;

(iv)    past time;

(v)     domestic activities;

in which he was accustomed to indulge immediately prior to the 19^th September 1996.

INTERROGATORY 1

(a)    Yes.  Since 19/9/96.  I object to answering as to "why" because that is a matter of evidence.

(b)    Yes.  Since 19/9/96.  I object to answering as to "why", because that is a matter of evidence and I object to answering as to "what employment" because it is prolix and fishing and oppressive and irrelevant.

(c)    Yes.  Since 19/9/96.  I object to answering as to "why" because that is a matter of evidence and I object to answering as to "what occupation" because it is irrelevant to the issues in this case, is prolix, fishing and oppressive.

(d)    I object to answering this interrogatory because it is not relevant to any of the issues disclosed in the case and is otherwise prolix, fishing and oppressive."

I uphold the plaintiff's objection to interrogatory 1(a)(b) and (c) in so far as it objects to proffering a reason for the disability etcetera the plaintiff claims to have.  This is clearly a matter of evidence and one would anticipate evidence of a medical nature to be given by experts on the basis of factual symptomatology to be presented by him.  It is not an appropriate subject for an interrogatory.  As to 1(d) the plaintiff objects on the basis of relevance, prolixity and oppression and on the further basis that the inquiry is in the nature of a fishing expedition.  Some inquiry in respect of activities not associated with his capacity for employment could be said to be relevant to a fact in issue, for an ability, eg, to play physical demanding sport or to record book readings for the blind, may bear on his capacity to perform gainful occupations for which he is reasonably suited by education, training or experience, even though he may be unable to perform each and every duty of his previous occupation.  But the interrogatory does not inquire into that, but merely seeks an answer to the question whether, since the date of the defendant's letter declining further payments, he has any disability etcetera in carrying out or participating in recreations, hobbies, sports, past times and domestic activities which he was accustomed to indulge in immediately prior to the date of that letter.  I fail to see how that can be relevant to any question in issue between the parties.  In any event the question is far too wide and would require consideration of diminished capacities (between 19 September 1996 and the present) in respect of a host of activities, which could range from stamp collecting to the undertaking of household chores, few if any of which, could be relevant to his capacity for gainful employment.  To ask questions of that width amounts to oppression in my view.

Interrogatory 2 is consequential on interrogatory 1 and hence need not be addressed but it further demonstrates the width and oppression of the question as it inquires into the frequency with which each activity was undertaken in periods of six months, twelve months and three years, prior to 19 September 1996.

Interrogatories 3 and 4 and their answers are as follows:

"INTERROGATORY NO. 3

Let the plaintiff state whether since the 19^th September 1996 he has suffered or experienced any, and what:

(a)   pain;

(b)   disability;

(c)   inconvenience;

(d)   discomfort;

(e)   exacerbation of any pre-existing pain, disability, inconvenience or discomfort.

INTERROGATORY NO. 4

If "yes" to any part of interrogatory No.3 hereof state:

(a)   the portion of the plaintiff's body in which he has suffered the same;

(b)   the approximate date after the 19^th September 1996 when he first experienced the same;

(c)   the approximate date when he last experienced the same;

(d)   the approximate frequency with which he has experienced the same since the 19^th September 1996;

(e)   whether or not he still suffers or experiences, any, and which, of the same at any, and what, approximate intervals of time.

INTERROGATORY 3

Yes.  Since 19/9/96 I have had continual lower back pain varying from mild to extreme and this has caused me disability, inconvenience and discomfort.  I object to answering the balance of the interrogatory upon the grounds that it is a matter of expert evidence, is fishing, imprecise and oppressive.

INTERROGATORY 4

(a)    My lower back.

(b)    It has been continuous since 19/9/96.

(c)    The question assumes that the pain has ceased, and on that basis I object to it.

(d)    Continuous.

(e)    Yes, continuous."

This too is a clear case of oppression.  The plaintiff has addressed the substance of both interrogatories in his answers, but to expect a break-down between pain, disability, inconvenience, discomfort and exacerbation of the same in every part of the plaintiff's body experiencing it, with dates of the first and last such experiences and frequency, is altogether unreasonable, prolix and oppressive.  I decline to make any of the orders sought.