Gannon v Gannon

Gannon v Gannon - [1971] HCA 76 - HCA 1971 case summary — Zoe

[77]

Answers to interrogatories are no more than admissions of fact and I have found no sound basis for excluding evidence by a witness called for a party because the evidence to be given would be at variance with answers to interrogatories made by that party which have been put in evidence. It may perhaps happen that a case is so conducted that it would be wrong to admit evidence to impeach answers to interrogatories. This is not such a case and it is not to the point to suggest that, in some cases, the Court, in the interests of justice, would not allow evidence to be called to contradict answers to interrogatories. Here, if the evidence of the farmers cannot be relied upon, simply because it is at variance with the defendant's answers, it must be because those answers had taken the matters to which they relate outside the area of conflict at the trial. There are, of course, statutory provisions relating to the extent to which a party may go to discredit his own witness. Such a provision is s. 16 of The Evidence and Discovery Acts, 1867 to 1962 Q., but it is not suggested that this section rendered the farmers' evidence inadmissible in this case. Assuming that the farmers' evidence was relevant, I am satisfied that it was not inadmissible to the extent to which it was in conflict with the defendant's answers to interrogatories. That an admission does not, of itself, prevent the bringing of evidence to the contrary is plain enough but it is said (1) that the rule is different as to "formal admissions", and (2) that answers to interrogatories fall into this special category. In support of these submissions counsel for the appellant cited several text books: Phipson on Evidence, 11th ed. (1970), p. 21; Cross on Evidence, Australian ed. (1970), pp. 175-176; and Wigmore on Evidence, 3rd ed. (1940), vol. 4, par. 1058. Reference was also made to a case of Clarke v. Clarke [1] . For my part I am not prepared to put an admission in an answer to interrogatories on the same footing as an admission in a pleading. A pleading may be amended, but an answer to an interrogatory, once delivered, cannot be withdrawn, although, in a proper case, it may perhaps be possible to obtain leave to answer further. Furthermore, however, and more fundamentally, pleadings determine what is in issue; answers to interrogatories do not. An answer could not do so at the time of its delivery and, in my opinion, it does not do so when it is put in evidence. It is no more than evidence of a fact in issue; that is why it is admitted. I see no reason why it should be regarded as exclusive and exhaustive evidence of that fact. It would, I think, be contrary to principle to permit the plaintiff to call witnesses to prove that the plant was dangerous and deny the defendant the right to call evidence that the plant was not dangerous on the ground that the defendant had, in answers to interrogatories, made admissions supporting the contention that the plant was dangerous.

[83]

The accident sued upon occurred when the harvester, with its flails operating at six inches above the ground, somehow caught a piece of wire and threw it forward: it apparently hit some part of the undercarriage of the tractor and was deflected upwards: this occurred when the plaintiff's head was momentarily turned and he was looking backwards: the fragment of wire struck and penetrated his eye. He sued his father, as his employer, claiming that he was negligent in allowing him as his servant to use a machine that was inherently dangerous: in that it was likely when in use to throw small stones or clods of earth forward and that stones or other foreign objects thrown forward might glance off some part of the tractor, rebound upwards and strike the driver. It was claimed that the possibility of this required that an employer, exercising proper care for the safety of his workman, would provide him with goggles to protect his eyes or would not require him to use the machine unless it were in some way modified. Whether or not a reasonable man would consider such precautions necessary, so that the failure to take them would amount to negligence, was the question for his Honour the trial judge. It was for him to judge the weight of the evidence. Unless it appeared clearly that his decision was wrong and insupportable on the evidence, it would not be for this Court to interfere. Far from thinking that his Honour could not reasonably have reached the conclusion that he did on what was a matter for him, I think that there was ample evidence to support his conclusion. Indeed I would have been surprised had he taken a different view. Let it be assumed that the machine might sometimes throw stones forward, the risk of anyone on the tractor being hurt thereby seems to have been at most slight. The plaintiff's father, who had had the harvester and seen it in use for over two years before the accident, said in his answers to interrogatories that he was aware that objects thrown up by it on occasions struck the operator. But there was no evidence that anyone using a machine of this type had been hurt. The plaintiff's father was, we may assume, a reasonable man, reasonably solicitous for the welfare of his son: yet he had not thought it necessary to take measures which it is now said that no reasonable man would have neglected to take for the safety of a servant. This is an eloquent fact. The natural inference from it, and from the evidence as a whole, seems to me to be that before this accident no one would have foreseen it or the happening of any other event of a like kind as within the range of possibilities against which it would be reasonable to guard. The risk, if foreseen at all, might well have seemed so slight that it could be brushed aside. I shall not enlarge on this, as if I did I would be only repeating what I wrote last year in Mount Isa Mines Ltd. v. Pusey [1] , concerning risks called "remote".

[89]

There is a still more fundamental objection to the application in this case of the rule that formal admissions cannot be contradicted by the person who makes them. The evidence of the witnesses that it is said contradicted the answers that the plaintiff's father made to the interrogatories was tendered by counsel for the Insurance Office, the defendant by election. It had undertaken the whole conduct of the defence. This was a recognition of the reality of the position. Whatever one thinks of it, the established doctrine of our law alterable only by Parliament is that liability for damages for personal injuries depends upon fault: and it is for the injured person as plaintiff to prove both the defendant's fault and his damage. Insurance is ordinarily against legal liability to third parties. It is a matter of common knowledge that in claims for personal injuries, based upon allegations of negligence, the defendant is often not unwilling that negligence be proved, thereby enabling the plaintiff to recover at the expense of an insurance company. To this end a defendant may be prepared to make admissions, to answer without objection interrogatories not properly allowable, to go quietly at the trial, and otherwise to facilitate the plaintiff's case. This may go so far as dishonest collusion. The provisions of the Queensland Act enabling the Insurance Office to be joined as a defendant and to take over the conduct of the defence are, it would appear, designed to prevent this by ensuring that the issue of the liability of the alleged tortfeasor is fully contested. That object would be frustrated if the Insurance Office is to be held bound by admissions, formal or otherwise, made by the alleged tortfeasor. The Act provides that the Insurance Office is entitled to conduct the proceedings "on behalf of the employer": but this in my opinion does not make it, the defendant by election, in privity with the original defendant in the relevant sense so that it is bound by his admissions. Professor Cross in his work on Evidence has said "it must be frankly recognized that there is no single rational basis for the reception of vicarious admissions as the subject is one in relation to which it is difficult to distinguish rules of substantive law from rules of evidence". The rationale of admitting in evidence a defendant's answers to interrogatories, but refusing to recognize them as binding upon the Insurance Office as defendant by election, lies in the policy of the statute as I see it. I would refer to passages in the judgments in Nominal Defendant v. Hook [1] dealing with a not dissimilar position in the case of informal admissions. I do not doubt that the defendant by election, in conducting the defence on behalf of an original defendant, could make admissions binding upon both of them: but that does not mean that the original defendant's admissions bind the defendant by election. The latter is by statute the irremovable agent of the former. It is not to be treated as if the positions were reversed, so that the original defendant is its agent to make admissions.

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Judgment (90 paragraphs)

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