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. 9 In my view, his Honour has erred in concluding that the claimant will have ready access to the res ipsa loquitur principle. It is not necessary to go further than pointing out that, on the information presently at hand, that is a very debatable proposition. The principles were recently reviewed in Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18, (2000) 74 ALJR 743 where the High Court reaffirmed earlier statements that, if an occurrence is to provide evidence of negligence on the basis of res ipsa loquitur, it can only be where, within the common knowledge and experience of mankind, that occurrence is unlikely to occur without negligence of the party sued. As Gaudron J put it at [71], "res ipsa loquitur has no operation if the event in question can occur in the ordinary course without negligence". There is nothing inherent in the situation of a young child being struck by a car in a public street which satisfies such a test. It will all depend on the circumstances. On the presently available material, this case is not a strong candidate for application of this method of judicial reasoning. In these circumstances I disagree with his Honour's description of the first opponent's police statement as a "benefit". 10 The error involving res ipsa loquitur may be a product of the invocation of the principle in the pleaded particulars of negligence, but that circumstance does not justify reliance upon the principle in light of the material before his Honour. 11 I would also conclude that his Honour erred in apparently treating the interrogatories as unnecessary because the claimant already had access to the police statement. The police statement is mainly if not wholly exculpatory. It offers very little comfort to the plaintiff and it does not address a number of potentially relevant issues. I do not understand how it could be described as a "benefit" to the plaintiff in these circumstances. 12 In this area, the accepted test of necessity is what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial (Boyle v Downs [1979] 1 NSWLR 192 at 205, Yamazaki v Mustaca [1999] NSWSC 1083). The answers which are sought are material in the sense that they may enable the claimant either to maintain her own case or to destroy the case put against her (see Griebart v Morris [1920] 1 KB 659 at 664). 13 Griebart was remarkably similar to the present case. The plaintiff in a running-down case was concussed and left with a defective memory of her accident. No eye witnesses could be found. The plaintiff sought to administer interrogatories asking in substance what were the positions of the bus from which the plaintiff had alighted and the defendant's motor car at the time of the accident, and how far the plaintiff was from the bus and from the curb on either side of the road. Leave to administer these interrogatories was refused in the lower courts on the basis of a rule of practice not to allow interrogatories in running-down cases except for special reasons. The English Court of Appeal held that there was no such rule of practice and that in the circumstances the interrogatories were necessary for disposing fairly of the action. See also James v Glenn [1942] VLR 132, Wisniewski v Tolley (1967) 10 FLR 157. 14 Griebart is referred to by Jordan CJ in the Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 575 as authority for the proposition that there may be special circumstances in which a party is entitled to use a subpoena or a summons for interrogatories for the purpose of "fishing" in the sense of endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all. In Newcastle City Council v Kern Land Pty Ltd & Anor (No 1) unreported, 9 December 1996, McLelland CJ in Eq said (at pp3-4): The case of Griebart v Morris referred to by Jordan CJ and cases which have followed that case, both in New South Wales and elsewhere, illustrate that in particular circumstances it may be legitimate to use a subpoena for what would in other circumstances be characterised as for fishing purposes, where the relevant area of factual inquiry is one concerning which the plaintiff can, in the nature of things, have no knowledge, where for instance the area of factual inquiry is wholly or at least substantially within the knowledge of the defendants to the proceedings. 15 To the extent that there is a dictum to the contrary relating to fishing interrogatories in the judgment of Master Cantor QC in Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70 at 73 I disagree with it. 16 For these reasons I am of the view that the order should be set aside. The discretion is to be exercised afresh. 17 The draft interrogatories relate to a matter in question in the proceedings, namely the critical issue of negligence. With very minor exceptions, they go beyond the matters covered in the police statement. The answers may or may not favour the claimant's case, but (without them) that case has significant evidentiary difficulties. The answers may provide bricks with which to construct a case whether or not the claimant calls the first opponent at trial and seeks leave to treat him as an unfavourable witness (cf Evidence Act 1995, s38). 18 In my view it is necessary in the circumstances that the first opponent should answer the proposed interrogatories and verify his answers. 19 In written submission, counsel for the first opponent takes particular objections to some of the interrogatories. Some are said to be of a fishing nature, others to be irrelevant or too vague. I do not accept these criticisms. Nor is the number so excessive that Pt 22A r 1 (which deals with interrogatories on notice) should govern by analogy. 20 The first opponent again invokes his medical condition. He has Parkinson's disease, but there is no indication on the evidence that it has progressed to a dementing stage. I do not accept that requiring the opponent to answer the interrogatories will unfairly prejudice his ability properly to present his case or delay the trial from coming on for hearing. If anything, the interrogatories may reduce the uncertainties and stresses of litigation because they will confront the opponent, on notice, with material that might otherwise be put to him for the first time in cross-examination. The process of interrogatories may even promote settlement by informing all parties of the strength and weaknesses of their respective cases. 21 The second opponent, Mrs Hall, should not have been made a party to the proceedings in this Court. Her costs on a submitting basis should be paid by the claimant. 22 I propose the following orders: 1. Subject to the filing of a notice of appeal, grant leave to appeal. 2. Uphold the appeal. 3. Set aside the orders made on 4 February 2000 refusing the application to administer interrogatories and ordering the plaintiff to pay the first defendant's costs. 4. In lieu thereof, order the first defendant to serve on the other parties, within 28 days, a verified statement in accordance with Part 22A rule 6 of the District Court Rules in answer to the interrogatories specified in the Notice being annexure L to the affidavit of Scott Hall-Johnston sworn 19 November 1999 and filed in the District Court. 5. Order the first respondent to pay the appellant's costs of the said District Court application and of the proceedings in the Court of Appeal and to have a certificate under the Suitors Fund Act , if qualified. 6. Appellant to pay costs of second respondent in this Court on a submitting basis. 23 POWELL JA: I agree with Mason P. 24 FITZGERALD JA: I agree with Mason P. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.