Sharma v RB Patel Group Ltd [2012] FJHC 973; HBC99.2007 (2 March 2012)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION
Civil Action No: HBC 99 of 2007

BETWEEN:

PUSHPA SHARMA
[Plaintiff]

AND:

R. B. PATEL GROUP LIMITED
[Defendant]

Counsel: Ms. S. Devan for the Plaintiff.
Mr. F. Haniff for Defendant.

Date of Judgment: 2nd March, 2012

RULING

[1]. This is an application pursuant to order 26 Rule 1 of the High Court Rules 1988, for an order requiring the plaintiff to answer interrogatories. The plaintiff has filed the present action seeking damages for injuries that she suffered due to a fall when she exited the defendant's supermarket premises.

[2]. The facts of the plaintiff's statement of claim can be summarised as follows:

The plaintiff is a housewife. The defendant is a limited liability company and the owner of a shopping complex in which, it runs a supermarket. There is a public car park adjacent to the said shopping complex. On 03.12.2006, whilst he plaintiff was exiting the supermarket and going towards the car park, she caught her foot upon a thick rope which was being used by the defendant as a barricade near the parking area, and as a result, she fell down and sustained injuries to her left elbow.

[3]. The plaintiff alleges that the injuries she sustained were due to the negligence of the defendant's or its servants.

[4]. The defendant denies its liability. The defendant in its application for interrogatories seeks answers to 39 questions. The plaintiff has in her answering affidavit agreed to answer the questions 1 to 18, 21, 24, 25, 28 to 31 and 34 to 39. The plaintiff has refused to answer the questions 19, 20, 22, 23, 26, 27, 32, and 33.

Relevant Law

[5]. Order 26 Rule 1(3) of the High Court Rules provides as follows:

On the hearing of an application under this rule, the court shall give leave as to such only of the interrogatories as it considers necessary for disproving fairly of the cause or matter or for saving costs; and in deciding whether to give leave the Court shall take into account any offer made by the party to be interrogated to give particulars or to make admissions or to produce documents relating to any matter in question.

Order 26 Rule 1(4) provides:

A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) shall be disallowed notwithstanding that it might be admissible in cross-examination of a witness.

[6]. The leading authority on the scope of interrogatories is that of Lord Esher MR in Marriott v. Chamberlain [1886] UKLawRpKQB 89; (1886) 17 QBD 154 (CA) at 163.

'The law with regard to interrogatories is now very sweeping. It is not permissible to ask for names of persons merely as being the witnesses any other party is going to call, and their names not forming any substantial part of the material facts; and I think we may go so far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves. But with these exceptions it seems to me that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly n the issue, but extends to any facts, the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.'

[7]. Lockhart J in WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 30 ALR 559 and 574 referred to the four objects of interrogatories, namely:

1. To obtain admissions as to facts, which will support the case of interrogating party.
   
2. To obtain admissions which will destroy or damage the case of the party interrogated.
   
3. Interrogatories which are I the nature of a request for further and better particulars.
   
4. Interrogatories which seek to obtain accounts from a party occupying a fiduciary position.
   

[8]. Whether or not interrogatories will be allowed is purely a matter of discretion for the court. Interrogatories are only allowed if they are necessary for disposing fairly of the case or for saving costs and shall not be allowed which relate solely to the evidence the party intends to adduce.

[9]. Further, the interrogator must show that his interrogatories, if answered when served, would save costs and secure a fair and efficient conduct of the trial.

[10]. Interrogatories will not generally be allowed where the object is to obtain an admission of a fact which can be proved by a witness who will in any case be called at the trial.

I now turn to the interrogatories.

[11]. Interrogatories No 19 and 20:

• Did the plaintiff attempt to cross a barricade at the car park of the R.B. Patel Centerpoint on 03.12.2006?
  
• If the answer to 19 above is yes, why did the plaintiff attempt to cross the barricade?
  

[12]. The question No 19 is directly linked to the issue of contributory negligence. The plaintiff in his statement of claim very clearly stated that her foot got caught in the rope. The object of this question is to obtain an admission of a fact which could be proved by a witness. Similarly, question No 20, is not permissible because it intends to interrogate on disputed assumption of facts and if answered, would make an admission. Therefore, I do not allow interrogatories No 19 and 20.

Interrogatories 22 and 23:

• Was there an alternative route to get to her destination?
• If so, what was the route and why did not she take that route?
  

[13]. It is the defendant's supermarket premises where the plaintiff had a fall and sustained injuries. Hence, whether there was an alternative route to get to her destination and, if so, what was the route should be within the defendant's knowledge, not within the plaintiff's. Therefore, I do not allow interrogatories No 22 and 23.

Interrogatories 26 and 27:

• What was the approximate height of the barricade that the plaintiff says caught her foot?
  
• Approximately what was the width of the barricade that the plaintiff attempted to cross?
  

[14]. The plaintiff submitted that she has discovered the photographs which are contained in the plaintiff's bundle of documents filed on 6.12.2010 and it shows the height and thickness of the rope and therefore there is no need for the plaintiff to answer to this interrogatories and ought to be a matter for trial. However, it is not easy to judge the height and the thickness of the rope by looking at the photographs. They are in the nature of a request for further and better particulars but not an attempt to obtain any admission. Hence, I will allow these interrogatories.

[15]. Interrogatories No 32 and 33: -:

• Did the plaintiff report the fall to anyone on 3 December 2006?
  
• If the answer to 32 above is yes, please provide details of each person the plaintiff reported the fall to.
  

[16]. In considering the above, the following passage by Buckley L.J. in Knapp v. Harley [1911] UKLawRpKQB 125; [1911] 2 K.B 725 at 732, is also of much importance.

'The purpose of interrogatories is not to enable the litigant to come into court knowing how the opponent is going to prove his case. He is not entitled to ask what his opponent's evidence is going to be. The argument for the defendant really comes to this, that, if he knew in advance whom the plaintiff was going to call as witnesses, he would be in a better position to meet their evidence. That is an inadmissible contention. ...............it is not necessary that the defendant should know the names of the witnesses for the plaintiff who are going to speak to them. It is not a ground for allowing an interrogatory of this kind that, if it were allowed, the defendant would know better how to meet the plaintiff's evidence.'

[17]. By interrogatories No 32 and 33 the defendants wants to know who could be the potential witnesses for the plaintiff. It is not permissible to ask for the name of witnesses, since names of the witnesses do not form part of the material facts. Therefore, Interrogatories No 32 and 33 are not allowed.

[18]. Of the proposed interrogatories filed, I therefore allow questions 26 and 27. The plaintiff is ordered to answer these questions within 21 days of service of the interrogatories on her by the defendant.

[19]. Costs shall be in the cause.

...............................

Pradeep Hettiarachchi

JUDGE

At Suva

2nd March, 2012.