Bailey v Council of the Shire of Sarina [1994] QSC 360

.,- .. . . . : .. ·.· .. ·...·;, .. .. ·. .·... ·.. .'t· ... ;·-, .. 1- sc q4· "360'•· ;·· c.X. 1,<_ q51:-_:_ ______ . State Repo1rting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CHAMBERS DEMACK J No 46 of 1991 GREGORY CHARLES BAILEY and THE COUNCIL OF THE SHIRE OF SARINA MACKAY .. DATE 01/12/94 .. DAY 1 ORDER 1 Plaintiff Defendant -- 1 of 5 -- 011294 D.1 T 2/DC M/T MKY478/94 (Demack J) HIS HONOUR: This is an application on the part of the defendant for an order that the plaintiff answer interrogatory 26 (vii) and interrogatory 26 (viii) , which interrogatories were delivered for the examination of the plaintiff on or about 31 January 1994. The first matter.that calls for attention is one raised by Mr Seaniger on behalf of the defendant in the course of his submissions. The copy of the interrogatories annexed to Mr Campbell's affidavit in support of the application is not signed. Mr Seaniger takes the point that the provisions of order 35 require the interrogatories, when delivered, to be signed. The fact of the matter is that no point was ever taken initially when the interrogatories were delivered. In fact, the interrogatories were answered on 2 June 1994 and there was no suggestion of any irregularity at that time. It seems to me that if there is an irregularity here, that it should be waived, because it does not constitute any embarrassment or difficulty to the plaintiff and the matter should be dealt with on its merits. The particular interrogatories that the defendant now seeks to have answered are part of a series of interrogatories that constitute interrogatory 26. There are, in fact, eight parts to that interrogatory, all of which direct attention to paragraph 10 of the Statement of Claim. Paragraph 10 of the Statement of Claim reads - "On or about the 8th day of June 1989 the plaintiff, in the course of his employment, was engaged in weed 2 ORDER r .o c JO c '···c -- 2 of 5 -- 011294 D.1 T 2/DC M/T MKY478/94 (Demack J) spraying operations which involve the use of a pump pressure hose and spray which were located at the back of a truck. The plaintiff was walking backwards away from the vehicle, pulling and untwisting the hose as it played out from the back of the truck, when he fell backward into a ditch and sustained injury." The amended defence raises the issue of contributory negligence in these terms - "Further or in the alternative if the plaintiff sustained injury as alleged in paragraph 10 of the Statement of Claim which is not admitted then such injury was caused or contributed to by the plaintiff's own negligence. Particulars (1) failing to keep any or any proper lookout. (2) Walking backwards when it was unnecessary for him to do so, and (3) Failing to have any or any proper regard for his own safety." It is not necessary to refer at length to any of the authorities on the question of interrogatories. It is sufficient to note that interrogatories must relate to issues that are raised on the pleadings but that they may be directed to, not simply the facts immediately concerned in the issues, but also facts that can constitute part of a chain of proof of the issues. The earlier answers to interrogatory 26 contain admissions by the plaintiff that he was walking backwards. These include an assertion that prior to walking backwards he did look and inspect the general area in which he intended to walk backwards, but that as he was walking backwards he did not look or inspect the general area into which he was walking backwards. Those answers are in respect of interrogatory 26 (v) and 26 (vi) . The interrogatories then ask the question - "(vii) Was the plaintiff on 08.06.89 and prior to him falling backwards into the ditch aware of the presence 3 ORDER iO 20 30 50 -- 3 of 5 -- 011294 D.1 T 2/DC M/T MKY478/94 (Demack J) of the ditch and, (viii) Had the plaintiff prior to 08.06.89 ever carried out weed spraying operations in the area referred to in paragraph 10 of the Statement of Claim and if so on how many occasions and/or over what period and/or over what frequency had the plaintiff carried out weed spraying operations in that area." The answers given are - "(vii) I say that I object to answer this interrogatory on the grounds that my knowledge or lack of knowledge of the presence of the ditch is not an issue on the pleading. The interrogatory is thus fishing, vexatious and irrelevant to matters raised by reference to the amended defence. (vii) I object to answer this interrogatory on the same grounds as to my objection to answer 26 (vii) and further that the facts sought are within the defendant's knowledge." It seems to me that in respect of interrogatory 26 (vii) the question is directed towards one fact that is relevant to the issues raised in the amended defence, particularly in respect :o rl 20 \__ of keeping a proper lookout and in respect of having proper 30 regard for his own safety. While it may be implicit in the answers that have been given that he was not aware of the ditch, it seems to me that the question is directed towards a fact that is relevant to the issue raised in those particulars of contributory negligence. It seems to me that -.n (_ interrogatory 26 (vii) should be answered. In respect of 26 (viii), this raises matters of previous experience in the area and while, as I have said, interrogatories may be directed towards facts which establish part of the chain of proof of an issue, there does come a time when the facts are so peripheral to the proof of the issue that a line is drawn. This particularly arises if the facts are within the knowledge also of the other party. Here, the plaintiff was employed by the defendant and it 4 ORDER 50 -- 4 of 5 -- 011294 D.1 T 2/DC M/T MKY478/94 (Demack J) should be within the defendant's knowledge what occasions arose where he was required to work in this same general vicinity. However, apart from that, the question of previous visits to the area is one of dubious proof of any want of care for his own safety. On the issue of contributory negligence, the Courts have persistently referred to the fact that repetition in a task may blunt appreciation of the issues involved and consequently, as a general rule, the fact that a task has been done previously does not necessarily go to prove anything very much on a particular day. So, it seems to me that the question asked in interrogatory 26 (viii) is one to which objection is properly taken. I order that the plaintiff answer interrogatory 26 (vii) , and such answer be made under oath within 14 days of this date. It seems to me that here it is appropriate to reserve the question of costs at the moment. I have made the order in respect of answering the interrogatory, so that the remaining order will be costs reserved. 5 ORDER :o 20 50 -- 5 of 5 --