SCHUTT v QUEENAN & ANOR [2000] NSWCA 341

New South Wales Court of Appeal

CITATION : SCHUTT v QUEENAN & ANOR [2000] NSWCA 341 FILE NUMBER(S) : CA 40367/00 HEARING DATE(S) : 23 November 2000 JUDGMENT DATE : 23 November 2000

PARTIES : CASSANDRA SCHUTT (BY HER NEXT FRIEND STEPHEN SCHUTT) v BRIAN QUEENAN & ANOR JUDGMENT OF : Mason P at 1; Powell JA at 23; Fitzgerald JA at 24

LOWER COURT JURISDICTION : District Court LOWER COURT DC 514/99 FILE NUMBER(S) : LOWER COURT Downes ADCJ JUDICIAL OFFICER :

Claimant/Appellant: J V Agius SC/J Springthorpe COUNSEL : 1st Opponent/Respondent: J D Hislop QC/M A Elkaim 2nd Opponent/Respondent: P D Ryan Claimant/Appellant: Beilby Poulden Costello SOLICITORS : 1st Opponent/Respondent: Windeyer Dibbs 2nd Opponent/Respondent: Sparke Helmore CATCHWORDS : District Court - personal injury - motor vehicle accident - interrogatories to defendant driver - plaintiff unable to produce any eye witness - District Court Rules Pt 22A r5 - whether interrogatories "necessary". D. DECISION : See par 22 of judgment.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40367/00

MASON P POWELL JA FITZGERALD JA

Thursday 23 November 2000

CASSANDRA SCHUTT v BRIAN QUEENAN & ANOR JUDGMENT

1 MASON P: On 22 November 1995 the claimant was injured when struck by a car driven by the first opponent along a public street in Bundeena. The claimant had then just turned six. According to the facts alleged in the amended ordinary statement of claim in the District Court, the claimant was being driven to her grandmother's house by lady called Mrs Hall. Mrs Hall had dropped her on the south side of the street, roughly opposite the grandmother's house. The claimant ran out from an obscured position and was struck by the first opponent's vehicle. 2 The claimant has propounded an alternative claim in negligence against Mrs Hall, but that does not concern us at the moment. It is however common ground that Mrs Hall did not see the immediate accident. Nor is the claimant able to give evidence about it, having regard to her injuries and her age at the time of the accident. It is common ground that there are no other known eye witnesses. 3 The usual particulars of driver's negligence have been alleged against the first opponent. It is however clear that liability will be seriously in issue. The insurer's solicitors indicated this on 18 November 1999. The denial of liability has been backed up by the service of two reports of a crash investigation engineer. 4 The first opponent was interviewed by the police on the day of the accident. He is an experienced driver, now aged 75. According to his police statement, he was driving at 10-15km/h. He also said: I was driving east on Scarborough Street and I saw a car parked on the left hand side of the road and I moved slightly to the centre of the road to pass the parked car. Then I saw a little girl's head in front of my car. I started to brake and I think I swerved into the middle of the road. I stopped the car and got out I didn't know the girl was under the car. I ran down the road and a lady yelled she's under the car. I then went and got the ambulance. 5 Faced in these circumstances with relatively bleak prospects of establishing negligence against the first opponent, the claimant (acting through her next friend) moved the District Court for an order requiring the first opponent to answer 15 interrogatories (some of them containing subsets of questions). Part 22A rule 5 of the District Court Rules provides: 5.(1) The Court may, at any stage of any proceedings, order any party to serve on any other party (whether the interrogating party or not) - (a) a statement in accordance with rule 6 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings; or (b) a statement as mentioned in paragraph (a) verified by affidavit. (2) The Court shall not make an order under subrule (1) unless satisfied that the order is necessary at the time when the order is made. 6 The interrogatories explore where the opponent came from, where he was going, his view, his familiarity with the street, his particular observation of Mrs Hall's vehicle and its passengers, what he saw immediately prior to the collision and details of the collision itself. 7 The application was refused by Downs ADCJ. It is this order that is challenged in these proceedings which were heard as an appeal, subject to the grant of leave. 8 In the court below, speaking through counsel instructed by his insurer, the first opponent faintly invoked his age and declining health and mental faculties as a ground for not being required to answer the interrogatories. His Honour noted that this was a two edged sword and ultimately found this argument undeterminative. The reasons for rejecting the application were: The main argument of the defendant is that the plaintiff has the benefit of the statement that was made to the police by the first defendant presumably at or immediately after the happening of the accident. Furthermore the defendant has served upon the plaintiff an expert's report the bottom line of which I presume, although I have not read it, would indicate that the defendant was not negligent. As to this report it does not impress me because I really do not know upon what facts the expert relied in order to express his opinion what the expert's qualifications are or where his expertise comes from or indeed how a person could come to a conclusion such as he has come. Regardless of all that, the fact is that the plaintiff has the benefit of a contemporaneous statement made by the alleged offending party at the time and the plaintiff has the right to rely upon the principle of res ipsa loquitur . The plaintiff has the right to rely upon res ipsa and therefore it would then be the responsibility of the defendant to present himself in evidence and be subjected to cross examination. The plaintiff has the benefit of the statement and would have the right, one would expect, to cross examination and therefore it seems to me that this is a case in which I should not make an order for interrogatories against the first defendant. Therefore the application is refused and I order the plaintiff to pay the defendant's costs of this motion.