Horsnell v Allworth Constructions

The relevant facts

1. In the principal proceedings, the plaintiff claims damages arising from an accident which occurred on 2 September 2011 on the basis of the following allegations. The plaintiff, who was employed by Atlas Cranes Pty Ltd, delivered frames and trusses for use in the construction of a two-storeyed dwelling house which was being built by Allworth Constructions Pty Ltd (the first defendant), with the assistance of the second defendant, who performed carpentry work. There was an unguarded void measuring 2ms x 1ms in the first floor where stairs were to be constructed. The first defendant's site supervisor, Ian Adamson, had done a risk assessment on 1 September 2011 and identified the area as a "fall zone". He had ordered void protection which had been booked for installation at 7am on 5 September 2011. When the plaintiff came to the first floor, he spoke with Alfred Tesoriero and Ben Wormald, who were both directors of the second defendant and who were working on the site at the time.
2. The plaintiff fell through the void in the floor and suffered catastrophic injuries, including head injuries. As a consequence he has no recollection of how the accident happened.
3. WorkCover investigated the accident, as a result of which charges were laid against the second defendant that it had failed to ensure that the premises were safe and without risks to health contrary to s 10(1) of the Occupational Health and Safety Act 2000 (NSW). Ultimately a plea of guilty was entered. The plaintiff has access to sworn statements by Mr Tesoriero and Mr Wormald prepared in the course of the WorkCover investigation; the statement of agreed facts on sentence; and a statement of Mr Adamson as to his recollection of versions given to him by Mr Tesoriero and Mr Wormald shortly after the accident happened.
4. There are several particulars of negligence. One such particular is: "(j) Permitting the plaintiff to participate in the movement of frames in the vicinity of the void."
5. The question whether the second defendant was implicated in the plaintiff's fall (other than by its presence on the site where the void was present) was squarely raised on the pleadings. The second defendant's defence filed on 17 June 2015 to the amended statement of claim filed 5 June 2015 specifically alleges: "[7] Any injury suffered by the plaintiff was not causally connected to any acts or omissions of the second defendant pursuant to s 5D of the [Civil Liability] Act."

Mr Tesoriero's version given to a WorkCover investigator on 5 March 2012

1. The version of the accident given by Mr Tesoriero in an interview conducted by WorkCover on 5 March 2012, which was signed by him on the same day as a "true and accurate record of this interview", was, relevantly: "Ken arrived approximately about 12 o'clock. Ken sets up his crane on the vacant block adjacent. We lifted 3 packs of frames on the top of the flooring. After we lifted the 3 packs, Ben and I started removing the cleats which were nailed along the edge of the frames to keep everything together and keep them from sliding. Ken packed up his crane while we were doing that. I was standing at the front of the job removing the cleats. Ken came up and approached me to sign the docket. I signed the docket. He noticed we had some flooring left over and asked me could he have it. I said yes. Ben and I walked to the frames next to the stairwell - we talked how we were going to move the first frame, being so heavy as it had steel in it. After it was decided how we were going to do it we approached the frame. Ben was on one side and I was on the end. The frame was close to the stairwell, probably about 2 feet away from the stairwell. Ben and I went to move the frame. Ken walked between the stairwell and the frame to the corner of the frame and asked "could I give a hand?" We sort of moved the frame - we, like I said it all happened so quick - we went to move the frame, Ken was on the corner asking if he could give us a hand and before we knew it he lost his footing. Q42 Did either you or Ben answer when he asked if he could lend a hand? A42. No. Q43. Had he started to assist you at this point? A43. It was all in one moment - Ben and I started moving it, he asked if he could lend a hand and we started moving it slightly - it would have only been a couple of inches with it being so heavy coz it had that steel in it.. And that's when he lost his footing and fell back into the stairwell. Ben and I rushed down to his aid."

Mr Tesoriero's affidavit sworn on 12 June 2014 at the sentence hearing for the WorkCover prosecution

1. In an affidavit sworn and relied on in the sentencing hearing of the charges brought against the second defendant by Inspector Robert Moore, Mr Tesoriero said: "22 On 2 September 2011 Mr Horsnell climbed the ladder in the first floor void and came to us to have his invoice signed. He Horsnell also asked us if he could take some left over flooring on site. 23 I refer to paragraph 39 of the SOAF [Statement of Agreed Facts]. At no time did Mr Wormald or I ask Mr Horsnell to assist us in our work. It was a matter of moments that Mr Horsnell assisted in holding a frame that Mr Wormald and I were moving. Mr Horsnell quickly lost his footing and fell through the void. It all happened very quickly."
2. The reference in [23] to Mr Tesoriero's affidavit to "SOAF" is a reference to the Statement of Facts to which he and Mr Wormald pleaded guilty, [40] and [41] of which said: "40 Mr Tesoriero and Mr Wormald then began moving a timber and steel frame into position, at which time Mr Horsnell offered and commenced to assist them. The timber and steel frame measured approximately 2.4ms in height and 4ms in length. 41 While Mr Horsnell was holding the frame together with Mr Tesoriero and Mr Wormald, Mr Horsnell lost his footing and fell through the unprotected first void and impacted on the concrete slab 2.9ms below on the left side of his face."

Mr Wormald's version given to a WorkCover investigator on 5 March 2012

1. Mr Wormald was also interviewed on 5 March 2012. His version, which was signed by him on the same day as a "true and accurate record of this interview" was as follows: "Q34. What can you tell me about the day of incident? A34. It was a normal day. We went to work as usual. Layed [sic] the floor, finished the floor at about 11.30. Cleaned up and had some lunch. Ken [the plaintiff] got there around 12 and set his crane up. He lifted the first floor wall packs upstairs. When he was finished he come upstairs then he talked to Alf [Tesoriero] about getting some flooring. I undid the frame packs and then Alf come over to help me move one of the walls. Him and Ken had finished their conversation and Alf come over to help me the wall - Ken asked can I give you a hand and as he went to grab the wall he's fallen down the stairwell."

Mr Adamson's version given to a WorkCover investigator on 7 March 2012

1. Mr Adamson was also interviewed by WorkCover on 7 March 2012. He said relevantly: "Q78. Did you remain on site? A78. Yes. Ben and Alf and myself then had a conversation about what happened and they explained to me what happened. They said that Ken had finished his job. He then packed up the crane, wrote his invoice out and got out of the crane and walked into the job, up the ladder and handed the invoice to Ben and Alf. Whilst he was up the ladder he asked Ben and Alf if he could have an off cut of flooring which wasn't needed on the job. They said "yes, you can have it". He stayed up there for a few minutes and had a conversation with them. I can only gather that he must have felt obliged to start to help them lift the frames off the packs. Whilst loosening the frames from the packs Ken fell down the stairwell. He felt obliged that he needed to help, because Alf had given him the piece of flooring and they said his help wasn't required but he insisted."

Mr Tesoriero's witness statement dated 5 March 2016

1. On 20 October 2015 directions were made in the present proceedings for filing of the defendants' lay witness statements. In his evidentiary statement dated 5 March 2016 Mr Tesoriero said, of present relevance: "36. Ben [Wormald] and I moved towards one of the frames that was located near the stair void. We discussed how we were going to move it, as it was heavy. I do not recall the precise conversation. 37. The frame was on its side near the stair void. 38. As Ben and I stated to move the frame, Ken [the plaintiff] walked between the stair void and the frame and said words to the following effect: Ken: "Can I give you a hand?" 39. Ken then fell down into the stair void. It all happened very fast and within a matter of seconds. 40. Ken was not assisting us at the time of his accident."

The second defendant's answers to interrogatories, sworn by Mr Tesoriero on 19 July 2016

1. By motion filed on 23 November 2015 the plaintiff sought leave to administer interrogatories. Leave was ultimately granted by Button J on 22 June 2016: Horsnell by his tutor Horsnell v Allworth Constructions Pty Ltd [2016] NSWSC 844 on the grounds that the plaintiff's injuries prevented his knowing what occurred immediately before he fell. Answers were provided by both defendants. Of present relevance, the second defendant answered as follows: 11. Interrogatory: At the time of or immediately prior to the plaintiff falling into the void, was the plaintiff engaged with Alfred Tesoriero or Ben Wormald in moving a timber frame located near the void? Answer: The second defendant does not understand the meaning of the word "engaged" in this interrogatory. Immediately prior to falling into the void the plaintiff said words to the following effect: "Can I give you a hand?" To the best of the second defendant's recollect he was not engaged in moving the frame. The second defendant did not ask the plaintiff to assist it. Mr Wormald did not see the plaintiff attempt to assist move the frame. Mr Tesoriero now, in 2016, is unable to recall if the plaintiff touched the frame. Relevantly, the second defendant does not believe the plaintiff did materially assist it in the movement of the frame. 13. Interrogatory: If the answer to question 11 is in the negative, what was the plaintiff doing immediately prior to his falling into the void? Answer: To the best of the second defendant's recollection, the plaintiff was walking between the frame and the void and towards Mr Tesoriero and Mr Wormald who were in the process of moving a timber frame. . . . 15 Interrogatory: Did the plaintiff stumble before he fell into the void? Answer: The second defendant does not know. 16 Interrogatory: What caused the plaintiff to stumble before he fell into the void? Answer: See answer 15 above. 17 Interrogatory: Did the plaintiff stumble backwards into the void? Answer: See answer 15 above. 18 Interrogatory: Did the plaintiff step backwards into the void? Answer: See answer 15 above."
2. As referred to above the present motion was filed as the plaintiff contended that certain answers given by the second defendant were insufficient.

The parties' submissions

1. Mr Barry QC, who appeared with Mr Davidson on behalf of the plaintiff, contended that the answers to 11, 15, 16, 17 and 18 were insufficient, when one examined the statements of Mr Tesoriero and Mr Wormald set out above. He relied on the principle that there was an obligation on a person answering interrogatories, particularly on behalf of a company, to make appropriate enquiries and to have regard to available, relevant material before answering them and to ensure that the answers were given to the best of his or her information, knowledge and belief. He contended that the plaintiff was entitled to admissions on oath which accorded with the sworn statements made by Mr Tesoriero in the WorkCover investigation.
2. Mr Barry submitted that, as the second defendant's answers were insufficient, the Court ought order that Mr Tesoriero be examined so that the plaintiff could obtain the desired admissions from him and could tender them in his case in chief. He also contended that it could not be assumed that Mr Tesoriero would give evidence in the second defendant's case and it was not realistic to expect the plaintiff to call the principal of the second defendant in his own case.
3. Mr Barry emphasised the forensic importance of the answers, which were relevant to the identification of the relevant risk of harm under the Civil Liability Act 2002 (NSW) and the question whether the risk was obvious. He submitted that interrogatories 11-18 were specifically designed to obtain admissions that would deal with the issue whether the plaintiff fell into the void while he was walking towards Mr Tesoriero or whether his fall was caused by the manner in which the plaintiff, Mr Tesoriero and Mr Wormald were attempting to move a heavy frame with him at one end a few feet from, and with his back to, the void in circumstances where Mr Wormald and Mr Tesoriero were moving the other end in such a way as to cause him to fall into the void.
4. Mr Perla, who appeared on behalf of the second defendant, submitted that the second defendant's answer to interrogatory 11 was sufficient and that the interrogatory was, in any event, defective because it used the word "engaged" which was ambiguous. He contended that it would not be appropriate to order an examination since such an order would only be made rarely and this case did not warrant the additional expense of an examination. He further submitted that matters of inconsistency and credibility were not matters that were germane to sufficiency in the context of answers to interrogatories and relied on Lyell v Kennedy (No 3) (1884) 27 Ch. D 1 at 16.
5. In the course of argument, I raised with the parties that it might be preferable to make an order pursuant to UCPR 22.4(1)(a), namely that the second defendant be required to give a further answer to interrogatories 11 and 15-18, rather than order an examination pursuant to UCPR 22.4(1)(b). Mr Barry accepted that such an order would be appropriate and did not wish to be heard against its making. He submitted that, if such an order were made, it would be appropriate that the costs of the motion be costs in the cause.
6. Mr Perla opposed the order on the grounds that the answers given were sufficient and that any apparent insufficiency was a product of the ambiguous wording of the interrogatory rather than any deficiency in the answer. He submitted that if such an order were made, the appropriate costs order would be that the plaintiff pay the second defendant's costs. He argued that, had the plaintiff sought a further answer rather than an examination, the costs of the hearing might have been avoided. Mr Perla also submitted that the second defendant ought have its costs to reflect the plaintiff's failure to obtain an order in accordance with his notice of motion.

The relevant legislative provisions

1. UCPR 22.1 provides for interrogatories. UCPR 22.3 relevantly provides: "(2) Such a statement [in answer to interrogatories]: (a) must deal with each interrogatory specifically, setting out each interrogatory followed by the answer to it, and (b) must answer the substance of each interrogatory without evasion, and (c) to the extent to which, and in the manner in which, the order so requires, must be verified by affidavit."
2. UCPR 22.4(1) provides: "(1) If a party who has been ordered to answer interrogatories under rule 22.1 fails to answer an interrogatory sufficiently within the time specified in the order or, if no such time is specified, within 28 days after being served with the order, the court: (a) may order the party to make a further answer, and to verify that further answer by affidavit, or (b) may order the party or, as the case requires, any person of the kind referred to in rule 35.3 (1), to attend to be orally examined."
3. UCPR 22.6(1) provides: "(1) A party: (a) may tender as evidence one or more answers to interrogatories without tendering the others, and (b) may tender as evidence part of an answer to an interrogatory without tendering the whole of the answer."
4. Section 56 of the Civil Procedure Act 2005 (NSW) provides, in summary, that the court must seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in civil proceedings.

Whether the answers are sufficient

1. The relevant principles for determining the sufficiency of answers to interrogatories were summarised in Discovery and Interrogatories, Simpson, Bailey & Evans (1990, 2nd ed), at 149 as follows: "If the answer does not provide all the information to which the interrogating party is entitled, it is insufficient. A party must not only answer from his personal knowledge but is obliged to answer to the best of his own knowledge information and belief. The rationale is that in order to ensure the usefulness of the interrogation procedure the party interrogated must answer from all three. In Adams v Dickeson, the Full Court of the Supreme Court of Victoria referred with approval to the following dictum of Lord Watson in Lyell v Kennedy (No 2): Personal knowledge, according to my understanding of the expression, is not limited to that which a man sees taking place, deeds done or events occurring before his eyes, but extends to knowledge derived from that which is in itself evidence calculated to induce a reasonable belief."
2. It is apparent from a review of the extracts from earlier versions given and statements made by Mr Tesoriero and Mr Wormald that the answer to interrogatory 11 is insufficient. While it may state Mr Tesoriero's current belief based on his current recollection, it fails to take account of earlier statements made by him and Mr Wormald, which is knowledge and information available to the second defendant. In light of the other material, it can be concluded that the answer does not reflect or address the knowledge, information and belief of the deponent, although, as I have said, it may reflect his current belief. This is not a matter of semantics, having regard to the forensic importance of interrogatories as admissions, particularly in cases such as the present when the plaintiff is not able, from his own recollection or resources, to say how the accident happened.
3. The answers to interrogatories 15-18, though not strictly speaking insufficient, are perplexing, in light of other material. It may be that some uncertainty arose by reason of the use of the word "stumble" rather than the words used by Mr Tesoriero himself in his statement: "lose his footing". I consider the most practical way of dealing with this apparent conundrum to be to direct the second defendant to answer interrogatories 15-18, but in an amended form which substitutes for the word "stumble", the words "lose his footing".
4. It could be said that the plaintiff has all he needs to prove the case that is sought to be put on his behalf since he has a sworn statement from Mr Tesoriero, who is a director of the second defendant, admitting how the accident happened, which accords with the plaintiff's best case (that he was helping the second defendant at the time he fell). However, the time for making this point has passed since, notwithstanding the availability of admissible material which could be tendered by the plaintiff as an admission by the second defendant, Button J granted leave to administer interrogatories. The order made by his Honour must be respected and complied with.
5. Furthermore, the law is not unsympathetic to the position of plaintiffs in personal injury cases who, through no fault of their own, cannot ascertain the precise mechanism or cause of their injuries. The present case is an example, as is the situation of a patient who was anaesthetised while undergoing surgery which is alleged to have been negligently conducted.
6. Interrogatories enable and facilitate the obtaining of admissions and the proof of negligence at trial. They are apt to overcome the initial disadvantage suffered by plaintiffs who cannot, by reason of injuries sustained in the accident the subject of proceedings, give their own version of what occurred. Although the question whether a wrong has been done (in the context of a breach of duty of care) is a question for trial, it is important that the requirement that answers to interrogatories be sufficient be enforced lest a defendant be permitted to take advantage of its own breach. It would not be in the interests of justice to put the plaintiff in a position where he has to resort to cobbling together a narrative from the various, and in some respects inconsistent versions given by the second defendant, and seek to tender them, or parts of them, as admissions in his case in chief in order to establish a case to answer. The better course is to insist that the answers to interrogatories be sufficient.
7. I note that there is no relevant privilege against self-incrimination which applies in such cases since the alleged wrong is a civil wrong. Nor is there any obligation on a defendant to go into evidence or to rely on evidentiary statements that have been filed and served in compliance with the Practice Note or directions made by the Court.
8. Rather than making an order in terms of prayer 1 of the notice of motion, I consider the preferable course to be to order the second defendant, pursuant to UCPR 22.4(1)(a), to make a further answer to interrogatory 11 and to order further answers to 15-18, with the word "stumble" amended to say, "lose his footing" in order to incorporate the wording from Mr Tesoriero's statement. This course has the benefit of being quicker and cheaper than ordering an examination, even accepting Mr Barry's assurance that any such examination would last no more than half an hour and could be conducted before a Registrar or the Duty Judge. An order in those terms would also have the benefit that any cross-examination of Mr Tesoriero would take place for the first time at trial, if indeed he is called, before the trial judge as the relevant tribunal of fact.

Costs

1. The evidence in support of the notice of motion reveals that the plaintiff's solicitor wrote to the second defendant's solicitor on 28 July 2016, setting out the apparent inconsistency between the answer to interrogatory 11 and the statements referred to above. The second defendant's solicitor did not answer the letter although a further four months passed before the motion was heard. The second defendant apparently made the forensic choice to resist the order for examination sought, without addressing the plaintiff's solicitor's concern about the sufficiency of interrogatories or whether it could be addressed in a more practical way.
2. In these circumstances, I do not consider that the second defendant is entitled to its costs of the motion. Nor do I consider that it would be just to order, as Mr Perla submitted in the alternative, that each party pay his, or its, as the case may be, costs of the motion. I accept Mr Barry's submission that the appropriate order is that the costs of the motion be costs in the cause.

Liberty to apply

1. It is undesirable and inefficient for issues such as the present to be determined by different judicial officers. If any further issue arises as to the sufficiency of the answers provided to these interrogatories, the parties ought have liberty to apply to restore the matter before me so that it can be dealt with in the context of the hearing of the present motion.

Orders

1. I make the following orders and directions: 1. Grant leave to the plaintiff to amend interrogatories 15, 16, 17 and 18 in the Notice to Answer Interrogatories ordered on 22 June 2016 by substituting for the word "stumble" the words "lose his footing". 2. Direct the second defendant to make further answers to interrogatories 11 and 15, 16, 17 and 18 in the Notice to Answer Interrogatories ordered on 22 June 2016, as amended by (1) above, and to verify the further answers by affidavit, to be served on the plaintiff on or before 16 December 2016. 3. Order that the costs of the plaintiff's notice of motion filed on 12 August 2016 be costs in the cause. 4. Grant liberty to the parties to restore the matter before me on three days' notice to my Associate if any further question arises concerning the sufficiency of answers to the Notice to Answer Interrogatories ordered on 22 June 2016, as amended.

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. Decision last updated: 19 April 2018