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.