Supreme Court
Action No. 210 of 1979
15th July, 1980
Moe, J

Mr. M.C. Young for the Plaintiff
Mr. M. Sosa for the Defendants

Civil Practice and Procedure - Application for leave to administer interrogatories - Circumstances in which it is proper for the court to exercise its discretion to give leave to administer interrogatories.

J U D G M E N T

The plaintiff in this matter seeks leave to administer the same six interrogatories on each of the defendants. The plaintiff claims (1) Damages for personal injuries and loss occasioned to him by reason of the negligence and/or breach of the contract of employment on the part of the defendants, their servants, or agents on the 6th July at the Water Treatment Plant at Mile 17 on the Northern Highway or in the alternative (2) Compensation under the workmen`s Compensation Ordinance (No. 9 of 1959) for injuries sustained by the plaintiff in an accident at the Water Treatment Plant at Mile 17 Northern Highway on the 6th July, 1979.

2. In his Statement of Claim he alleged in paragraph 5 thereof: "On or about the 6th day of July, 1979 at the Water Treatment Plant while the plaintiff was in the course of his employment assisting his fellow employees and employees of the first-named defendants in the matter of the raising of a steel bridge for a water tank the boom of a crane driven by the servant or agent of the Defendants fell and hit the plaintiff in consequence whereof the plaintiff sustained severe injuries and he suffered loss and damage." Each defendant admitted that statement in paragraph 5.

3. In paragraph 6 of the statement of claim the plaintiff alleges that "the said injuries and loss and damages were occasioned to the plaintiff by reason of the negligence and/or breach of duty of the defendants their servants or agents and/or breach of contract of employment on the part of the second defendants their servants or agents". Each defendant denies that it was guilty of the alleged or any negligence and/or the alleged or any breach of duty whether through its servants or agents or otherwise or that the matters complained of were caused as alleged in paragraph 6 of the Statement of Claim.

4. The interrogatories under examination are directed as follow:

(1) Who was the person that drove the crane referred to in paragraph 5 of the Statement Claim?

(2) By whom was the person who drove the crane hired?

(3) Was the crane your property?

(4) If the answer to (3) is no then who owned the craned?

(5) If the crane was neither owned by Batra nor Berne Hydro-Mechanic Ltd., who hired the crane?

(6) Under whose control was the crane at the time of the accident referred to in paragraph 5 of the Statement of Claim?

5. Generally, interrogatories will be allowed whenever the answers to them will serve either to maintain the case of the party administering them or to destroy the case of his adversary (Hennessey v. Wright (No. 2) (1888) 24 Q.B.D. 445 per Esher, M.R.). However their allowance or disallowance is a matter in the discretion of the court on the merits of the particular case (Heaton v. Goldney (1910) 1 K.B. 754 )

6. Now it will be seen that issues involved in this matter will be (i) Whether the injuries and loss were caused by negligence, and (ii) If so, whether that negligence is that for which the defendants may properly be held liable. The defendants contend that the interrogatories have no bearing on the issues whereas the plaintiff maintains that the whole thrust of the interrogatories is to ascertain the relationship between the driver of the crane and the defendants i.e. whether he was their servant or agent.

7. Relevant to the second stated issue is whether a servant or agent of the defendants or a defendant was driving the crane at the relevant time. And it would be quite proper for a party by interrogatory to get an admission of anything which he has to prove on any issue which is raised between him and the defendant. [See A.G. v Gaskill (1882 ) 20 Ch. D. 519 at page 528].

8. However, in this case, no issue is raised between the parties as to whether the driver of the crane at the relevant time was a servant or agent of the defendants. The defendants have, as indicated, admitted that this is so. It does not appear therefore that answers to interrogatories (1), (2), - which are directed at ascertaining of whom the driver was a servant or agent - will really assist the plaintiff. As Smith L.J. said in Kennedy v. Dodson [1895] 1 Ch. 334 "The legitimate use and the only legitimate use of interrogatories is to obtain admissions from the party interrogated of facts which it is necessary for the party interrogating to prove to establish his case and if the party interrogating goes further and seeks by his interrogatories to get from the party interrogated answers as to matters which it is not incumbent on him to prove, although such matters may indirectly assist his case, the interrogatories ought not to be allowed."

9. The interrogatories Nos. (3), (4), (5) and (6) seem also to offend the rule set out in Kennedy v. Dodson (vide supra). Those questions go beyond what the plaintiff has to prove and are therefore not admissible by way of interrogation.

10. In the result all the interrogatories are disallowed. Costs are to be costs in the cause.

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