Davis v Bo's Plant Hire & Watkins Pacific Pty Ltd (in liq) [1996] QSC 277 [1997] 1 Qd R 481

IN THE SUPREME COURT OF QUEENSLAND Writ No. 440 of 1992 Chambers Jurisdiction Brisbane Before the Honourable Mr. Justice Lee [Davis v Bo's Plant Hire Pty Ltd & Anor] BETWEEN: FLETCHER DAVIS Plaintiff AND: BO'S PLANT HIRE PTY. LTD. ACN 010 690 294 (in liquidation) First Defendant AND: WATKINS PACIFIC (QLD) PTY. LTD. ACN 010 462 816 trading as WATPAC Second Defendant REASONS FOR DECISION - LEE J. Decision delivered 14/06/1996 CATCHWORDS: PRACTICE DIRECTION - INTERROGATORIES - Leave required to deliver interrogatories - Defendants had no knowledge of incidents except for plaintiff's allegations - Unable to prepare defences - Second defendant alleged contributory negligence - Discretion to order more than 30 interrogatories. O. 35 r.19, 20, 21 R.S.C. considered. COUNSEL: Mr O'Sullivan for the plaintiff Mr King-Scott for both defendants SOLICITORS: Conroy & Associates T/a McDonald & Company Phillips Fox for both defendants HEARING DATE: 12/06/1996 -- 1 of 9 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 440 of 1992 Chambers Jurisdiction Brisbane Before the Honourable Mr. Justice Lee [Davis v Bo's Plant Hire Pty Ltd & Anor] BETWEEN: FLETCHER DAVIS Plaintiff AND: BO'S PLANT HIRE PTY. LTD. ACN 010 690 294 (in liquidation) First Defendant AND: WATKINS PACIFIC (QLD) PTY. LTD. ACN 010 462 816 trading as WATPAC Second Defendant REASONS FOR DECISION - W.C. LEE J. Delivered the 14th day of June,1996 The first and second defendants seek leave pursuant to O.35 r.20 of the Rules of the Supreme Court to deliver the same set of interrogatories for the examination of the plaintiff who claims damages for personal injuries following an alleged work place accident on 30th March 1989. Pleadings have closed. Each defendant has delivered notice of contribution or indemnity to the other. The plaintiff, an employee of the second defendant, claims that he was injured when he was struck by a drott driven by an employee of the first defendant which was a subcontractor engaged on the construction site by the second defendant who was the head contractor. The plaintiff alleges that he was -- 2 of 9 -- 2 struck by the drott at the north access gate to the construction site whilst the drott was crossing the kerb. By further and better particulars, the plaintiff states that he cannot remember the name of the operator of the drott but states that there was no visible registration number on the drott. The first defendant in essence denies all material allegations in the statement of claim. The second defendant does not admit that the first defendant was negligent and alleges that if the plaintiff did suffer personal injuries, they were caused by or contributed to by the plaintiff's own negligence as particularised. Matthew Neil Pokarier, solicitor for the first defendant, by affidavit filed 6th June 1996, states that he requested the plaintiff to voluntarily answer the interrogatories without seeking the "formal" leave of the Court to deliver them. The plaintiff's solicitors refused, hence this application. As appears from the rule itself, and as held by me in May v Bebbington (Supreme Court, Toowoomba, 24th May 1996), leave of the Court is by no means "formal", notwithstanding that there is an overriding discretion in the Court. These rules, which came into effect on 1st May 1994 are designed to minimise costs and delay in the delivery of interrogatories and costly applications in connection therewith unless certain conditions are satisfied by an applicant. The applicant has the onus of -- 3 of 9 -- 3 positively satisfying the Court of the requirements of O.35 r.21(1)(b) which provides as follows:- "(1) Subject to the order of the Court or a Judge, leave to deliver interrogatories may be granted - (a) on application without notice to any other persons; (b) only if the Court or Judge is satisfied there is not likely to be available to the applicant at the trial any other reasonably simple and inexpensive way of proving the matter sought to elicited by interrogatories." In that case, leave was granted to a plaintiff to deliver interrogatories. He was injured in a head-on car collision and suffered amnesia. No other witnesses were available apart from the plaintiff and the defendant. The police report contained no admissions by the defendant and/or other evidence to show on what side of the road the collision occurred. In this case, the first defendant company went into liquidation on 14th December 1990. All employees were made redundant and all records held by the company were handed over to the company's liquidators. Despite all reasonable investigations and attempts to locate the company records from the liquidators, their solicitors, the agents acting on behalf of the first defendant's mortgagee, or the former managing director of the first defendant, they have not been located. The managing director has no knowledge of the incident. Extensive inquiries of former employees of the first defendant -- 4 of 9 -- 4 have not identified any employee who saw or can recall seeing the events as alleged by the plaintiff, nor have extensive inquiries and investigation resulted in the location of the driver of the drott alleged to have struck the plaintiff. The first defendant has no knowledge whatsoever of the incident as alleged by the plaintiff. The proposed interrogatories are exhibited in compliance with O.35 r.21(2). Matters sought to be elicited are how the alleged incident occurred and certain items relating to quantum. The plaintiff claims that he injured his leg and pelvis and has suffered and continues to suffer from post- traumatic anxiety as well as from other permanent disabilities. He alleges that he is unable to return to his previous employment as building construction supervisor. The defendants seek to elicit information concerning the plaintiff's alleged residual disability resulting from a pre-existing injury or operation to his knee. Counsel for the plaintiff opposed the order sought on the basis that interrogatories will be allowed only in relation to matters which the applicant is required or seeks to prove at the trial and not matters which the respondent will be required to prove. It was said that the first defendant has simply denied the plaintiff's allegations and has not pleaded contributory negligence by the plaintiff as did the second defendant. Counsel for the defendants submitted that in the -- 5 of 9 -- 5 absence of any knowledge whatsoever of how the incident occurred if at all, the first defendant is simply unable to raise such a plea which it might well decide to do if relevant facts are elicited as sought by the interrogatories. Counsel for the plaintiff primarily based his opposition to the grant of leave on the provisions of O.35 r.21(1)(b) from which he submitted that the plaintiff alone was required to prove the circumstances of the alleged incident at the trial as alleged in the statement of claim and particulars and that it was not up to the defendant to prove such matters. It was therefore submitted that all interrogatories as to the circumstances surrounding the alleged incident, in the absence of an allegation of contributory negligence by the first defendant, were fishing and were not relevant so that leave should not be granted. As indicated, the second defendant has alleged contributory negligence. Counsel for the first defendant submitted that the rule does not refer only to proof of matters on which the ultimate onus rests on a party, for example allegations of negligence by the plaintiff or allegations of contributory negligence by the defendant, but also encompasses matters on which an evidentiary onus rests on a party. In my opinion, this submission is correct. The rules should not be restricted in the way submitted on behalf of the plaintiff. The defendants at the trial will be concerned with attempting to prove matters which -- 6 of 9 -- 6 weaken or destroy the plaintiff's case and which may establish contributory negligence. It was also submitted that the precise location of the alleged incident may result in the joinder of the Nominal Defendant or might lead to a narrowing of the issues if not settlement of the action or at least offers to settle if the plaintiff is put on oath. The lack of knowledge by both defendants despite extensive inquiries as to the circumstances of the accident and identity of the alleged driver, is little different to a case where a defendant in a motor vehicle collision is brain damaged or killed so that he or his representatives cannot effectively contest a plaintiff's allegation that the accident occurred due to his negligence where the plaintiff is the only other witness. Counsel for the defendants submitted that this was the type of case where leave should be granted. In my opinion, the defendants have discharged the onus of showing why leave to deliver interrogatories on the question of liability should be granted. As to interrogatories in relation to quantum, the plaintiff has given particulars in some detail of his alleged injuries, treatment and resulting condition, following upon a request by the first defendant. No statement of loss and damage has yet been filed or delivered. He states that he saw Dr John Mullett a "week from the accident", whereas Dr Mullett in a report dated 1st June 1994 to the first defendant's -- 7 of 9 -- 7 solicitors, stated that he did not see the plaintiff until 23rd April 1989, the accident allegedly having occurred on 30th March 1989, i.e. 24 days earlier. It was said that this goes to the seriousness of the plaintiff's alleged injuries. Dr Mullett also referred to signs of a pre-existing cartilage problem and said that the plaintiff gave a history of a knee operation in 1977 to remove a synovial plica. There is also the suggestion of early arthritis. It was submitted that the pre-existing injury does not have to be disclosed in the plaintiff's statement of loss and damage when delivered pursuant to O.39 r.29(c), which refers only to injuries the subject of the claim and medical treatment in consequence thereof. It was submitted that the defendants should not be obliged to go to the expense of calling Dr Mullett at the trial to prove such a matter which could simply and cheaply be established by means of an interrogatory. In my opinion, leave should also be given to the defendants to interrogate the plaintiff as to pre-existing injuries to his leg. In the circumstances I do not propose to limit the interrogatories in any other way and generally give the defendants leave to deliver interrogatories in the form as exhibited. Some argument hinged around the fact that whilst the interrogatories total 14, they are substantially more than the 30 contemplated by O.35 r.20(2) by reason of subparagraphs. -- 8 of 9 -- 8 However that rule gives the judge a discretion to allow a number greater than 30 to be delivered. In the circumstances of this case I direct accordingly. In the result, each defendant is granted leave to deliver the interrogatories in accordance with Exhibit MNP10 to the affidavit of Matthew Neil Pokarier filed 6th June 1996. Order that the plaintiff deliver answers to the interrogatories to each defendant by 12th July 1996. I will now hear argument as to costs. -- 9 of 9 --