Zhang v Popovic (No 2)

1. [1]

   HER HONOUR: By notice of motion filed 29 April 2015, the plaintiff seeks orders that leave be granted to interrogate the first, second, third, fourth and seventh defendants in accordance with the proposed interrogatories and that the first, second and seventh defendants answer the interrogatories with verification. The substantive matter is listed for hearing for five days commencing 21 March 2016, on the issue of liability only. The first and second defendants have consented to answering the plaintiff’s interrogatories. The seventh defendant objects to answering the interrogatories addressed to it.

2. [2]

   The plaintiff is Cheng Nian Zhang. The first defendant is Vlado Popovic. The second defendant is Calabro Real Estate Pty Limited (“Calabro”). The third defendant is Interfreight (Aust) Pty Ltd (“Interfreight”). The fourth defendant is Popovic Haulage Pty Ltd (“Popovic Haulage”). The third and fourth defendants have been deregistered so the orders for interrogatories sought from them have been stood over to the next directions hearing for mention. The sixth defendant is National Transport Insurance by its Manager NTI Ltd. The seventh defendant is ROC Services (NSW) Pty Ltd (“ROC Services”).

3. [3]

   The plaintiff relied upon two affidavits of his solicitor Bryan Gorman sworn 4 May 2015 and 12 November 2015. The seventh defendant relied upon the affidavit of its solicitor Tim Hackett dated 18 May 2015.

4. [4]

   On 16 September 2007, the plaintiff suffered catastrophic injuries, which have left him wheelchair bound.

The accident

1. [5]

   The plaintiff sues the driver of the semi-trailer rig which included the lifting ramp, the driver’s employer or employers, the owner of the prime mover and trailer, the insurer of the trailer which has declined indemnity in respect of the plaintiff’s claim and the seventh defendant who is alleged to have undertaken the work, including the welding work attaching the hydraulic lifting cylinder which failed and gave way to the trailer.

2. [6]

   On 14 September 2010, I delivered judgment in Zhang v Popovic [2010] NSWSC 1019. At [3] to [5], I accepted Mr Zhang’s version of events (which I accept will be subject to challenge at trial) and described the accident as follows.

3. [7]

   On 16 September 2007, Mr Zhang was injured in an accident at a container terminal at Botany, New South Wales. The accident involved a trailer attached to a prime mover (“the trailer”). The trailer comprised of two ramps at the rear of the trailer, one on the left side and one on the right. The trailer had two hydraulic lifting devices, one on the left and one of the right, and two safety chains. The ramps were each fixed to the rear of the trailer in the area of the floor of the tray of the trailer and each could be lifted down to the ground so that each ramp formed a platform from the ground to the tray of the trailer. Each ramp could be lifted to a vertical position relative to the floor of the trailer.

4. [8]

   Hydraulic lifting devices controlled the movement of each ramp. When not in use, each ramp was brought into the vertical or upright position, drawn alongside the vertical frame of the trailer and fixed in place by the use of the safety chain. On the day of the accident the left ramp had been moved into an almost vertical or upright position using the hydraulic lifting device but it was necessary to manually push the ramp further towards the trailer in order to bring the ramp into a full vertical position and in order to engage and fasten the left safety chain to the left ramp. Calabro was the owner of the trailer at the time of the accident. It is alleged that Mr Popovic was employed by Interfreight or by Popovic Haulage.

5. [9]

   On the day of the accident, Mr Zhang was at the container terminal with his own truck waiting to collect a container, near the trailer. Mr Popovic was the driver of the trailer at the time of the accident. At the request of Mr Popovic, Mr Zhang went to assist Mr Popovic and manually pushed the left ramp of the trailer while Mr Popovic controlled the hydraulic lifting device attached to the left ramp. The arm of this hydraulic lifting device broke or snapped away from the trailer and the left ramp fell from the vertical position towards the ground, crushing and pinning Mr Zhang underneath it.

6. [10]

   It is common ground that in about July 2006, the trailer was modified by ROC Services. By its defence filed 17 November 2015, ROC Services admits that it installed two hydraulic cylinders and an associated power pack on the trailer, but denies that it welded the bracket to the body of the trailer and that the bracket was inadequate for the support of the hydraulic component. ROC Services admits that in August 2006 it performed works on the trailer at the request of Interfreight and says that the works performed by ROC Services on the trailer consisted of the supply and installation of two hydraulic cylinders and an associated power pack, but denies that it welded the bracket to the body of the trailer. (Paras 13(a), (b), and (c) and 11(a), (b) and (c)).

7. [11]

   Critical issues that will arise at trial include determining which entity performed the modifications that involved the use of existing mounting points, known as lugs, for the hydraulic lifting cylinders and whether the modifications included the welding of lugs to the trailer. Calabro, the owner of the semi-trailer, says that ROC Services welded new lugs on the trailer. ROC Services disputes this allegation and says that it used the existing lugs. It is to this issue that the interrogatories are directed. ROC Services and Interfreight have served a number of witness statements. I shall briefly refer to the contents of these statements later in this judgment.

8. [12]

   I accept that the plaintiff does not know the history of the trailer, particularly in relation to the ramps and the modifications made to the mounting points for the hydraulic lifting cylinders. WorkCover has provided some information relating to the trailer, including photographs. ROC Services has also answered a subpoena issued by the plaintiff seeking the following documents:

9. [13]

   The information from WorkCover, statements provided by ROC Services and statements and documents produced on subpoena do not shed light on whether ROC Services used the old lugs or replaced them on the body of the trailer.

10. [14]

    The plaintiff has also issued a notice to admit facts and authenticity of documents directed to ROC Services. The first two facts Mr Zhang requires ROC Services to admit are:

11. [15]

    In the notice disputing facts and authenticity of documents, ROC Services disputes paragraphs 1 and 2 of the notice to admit facts and authenticity of documents. It also disputes the authenticity of photographs showing the trailer taken by both WorkCover and Dr Casey, the expert witness for ROC Services.

The law in relation to interrogatories

1. [16]

   Sections 22.1 and 22.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) relevantly read:

2. [17]

   ROC Services objects to an order for interrogatories being made against it on the basis that the plaintiff has not shown special reasons or necessity. Further, ROC Services has specific objections to answering all questions except 18(a) and 18(c).

Special reasons

1. [18]

   UCPR 22.1(3)(b) requires the court to be satisfied that special reasons exist justifying the making of the order in the case of proceedings involving a claim for damages arising out of bodily injury to a person. As the party seeking an order for interrogatories, the onus of establishing the existence of special reasons and necessity rests on the plaintiff: see O’Meara v Dr Arianayagam [2006] NSWSC 797 at [2].

2. [19]

   In Haywood v Collaroy Services Beach Club [2005] NSWSC 1203, Rothman J set out the special reasons that justified making the order for interrogatories (at [15]):

3. [20]

   In Priest v State of NSW [2006] NSWSC 12, Johnson J (at [127]-[128]) stated:

4. [21]

   In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498, Garling J (at [49] - [51]) said of the requirement for special reasons:

5. [22]

   Finally, in Cavric v Coopers & Lybrand (ACT) Ltd [2002] NSWSC 538, I stated (at [13]):

Necessity

1. [23]

   UCPR 22.1(4) requires that a Court must be satisfied that an order to answer interrogatories is "necessary at the time it is made".

2. [24]

   The necessity requirement is to be approached as meaning “reasonably necessary for the disposing fairly of the cause or matter” or “necessary in the interests of a fair trial”: Boyle v Downs [1979] 1 NSWLR 192 at 205 per Cross J.

3. [25]

   In Chong v Nguyen [2005] NSWSC 588, Rothman J explained (at [16]) the necessity requirement as follows:

The interrogatories

1. [26]

   Below is a summary of the interrogatories administered by the plaintiff to ROC Services.

2. [27]

   In the interrogatories, the trailer is defined as the trailer, registered number NT66DD, which was involved in the plaintiff’s accident on 16 September 2007. Reference to Calabro, Interfreight and ROC Services and to any corporation includes reference to their servants, contractors and agents.

3. [28]

   Interrogatories 1 to 6A concern matters relating to the work carried out by ROC Services on the trailer and the records relating to that work. ROC Services submits that the interrogatories seek admissions on matters which are already the subject of formal admission (most, if not all, matters covered by interrogatory 1) or which are addressed in the lay witness statements and expert reports served by ROC Services.

4. [29]

   Interrogatories 7 to 9 concern matters relating to whether ROC Services required Interfreight to obtain the opinion of an engineer as to how the components of the hydraulic system should be configured on the trailer before undertaking work on the trailer, and if such an opinion was not obtained, the reason(s) why it was not obtained. Counsel for ROC Services conceded that if an engineer’s report was in existence, it was caught by the schedule in the subpoena. No engineer’s report has been produced (Aff. Hackett 18/5/15).

5. [30]

   Interrogatories 10 to 12 concern matters relating to whether ROC Services obtained the opinion of an engineer as to how the components of the hydraulic system should be configured upon the trailer before undertaking the work on the trailer, and if such an opinion was not obtained, the reason(s) why it was not obtained.

6. [31]

   Interrogatories 13 to 14A concern matters relating to whether the work undertaken by ROC Services on the trailer included the installation of “metal support bases”.

7. [32]

   Interrogatories 15 to 17 require ROC Services to examine and construe photographs of the trailer taken after the accident. Counsel for ROC Services submitted that the provenance of such photographs have not been proved by the plaintiff. However, those photographs form part of the WorkCover file.

8. [33]

   Interrogatory 18 concerns ROC Services handwritten job sheets relating to the work undertaken by it on the trailer in 2006 and requires ROC Services to interpret various notations set out in the job sheets. (I have examined the job sheets. For them to be properly understood, it is my view that further explanation is required.)

Submissions

1. [34]

   Senior counsel for the plaintiff submitted that special reasons exist to justify making the order and that the order is necessary for the following reasons:

2. [35]

   ROC Services submitted that the plaintiff has not demonstrated the existence of special reasons that justify the making of an order for interrogatories for the following reasons:

   1. (1)

      (3) The affidavits and witness statements were served pursuant to case management orders of the Court. If the deponents of the affidavits and the makers of the statements are called by the parties that served them, the affidavits and statements will stand as the evidence in chief of those witnesses in accordance with UCPR 31.4(5)(a).

3. [36]

   Counsel for ROC Services also submitted that answers to the interrogatories are not presently necessary as they principally concern matters which are not peculiarly within the knowledge of ROC Services and its employees and concern matters that are capable of being proven by a witness or witnesses likely to be called at hearing.

Evidentiary statements

1. [37]

   The first to fourth defendants have served the statements of John Tubuso sworn 14 March 2014 and Peter Sanchez sworn 27 March 2014. ROC Services has served statements of Nabil Fahmy dated 22 October 2014, Adrian Hall dated 22 October 2014 and 25 February 2015, Dion Matsaniotis dated 26 November 2015, Robert Cox dated 24 February 2015 and an unsigned and undated statement of John Tichonzuk. I will briefly refer to them.

Interfeight’s statements (third defendant)

1. [38]

   At the time of the accident, John Tabuso was employed as a transport logistics manager with Interfreight He is a qualified motor mechanic and provided a statement dated 14 March 2014. His evidence is that in late June or early July 2006 he arranged for ROC Services to supply and fit a fully automatic hydraulic system to raise and lower the left hand rear ramp and the right hand rear ramp of the trailer.

2. [39]

   On or about 25 August 2006, the trailer was returned to ROC Services’ premises. Mr Tabuso inspected the trailer. He made the following observations:

3. [40]

   He deposed that ROC Hydraulics had welded the bracket, one to the left hand rear ramp and one to the right hand rear ramp. (Aff, [19 (g)]).

4. [41]

   At the time of the accident, Mr John Sanchez was working as a director of Hoxton Park Truck and Trailer Repairs (in liq). He is a licenced motor mechanic who holds auto electrical and welding qualifications. His statement is dated 27 March 2014. In 2006, he was involved in the regular servicing of Interfreight’s fleet. Between 20 May 2006 and 28 June 2006 he made the new ramps and prepared to fit them to the trailer body. The ramps were fitted to the trailer body by the hinge mechanism only.

5. [42]

   On 15 May 2006, Mr Tabuso approached Mr Sanchez and directed him to design and make new ramps for the trailer. In early July 2006, after Mr Sanchez had made the ramps, Mr Tabuso asked him to take the trailer over to ROC Services at Wetherill Park to get a full hydraulic set up installed to raise and lower the left hand and right hand rear ramps. Mr Sanchez then hitched the trailer up to a prime mover and drove the trailer to ROC Services. Prior to leaving, Mr Sanchez collected two used hydraulic rams from his business’ workshop and placed them in the trailer for ROC Services to determine if they could be attached to the trailer.

6. [43]

   On the day of transporting the trailer to ROC Services, Mr Sanchez deposed that there were no brackets welded to the left hand rear ramp or the right hand rear ramp of the trailer for a hydraulic mechanism and there were no hydraulic rams attached to the ramps or to anywhere else on the trailer. Mr Sanchez deposed that he did not carry out any further work to the trailer following the manufacture and attachment of the ramps to the trailer body. He is not aware of anyone else carrying out any work to the ramps prior to when he delivered the trailer with the ramps to ROC Services. When he arrived at ROC Services’ premises, he indicated to the person at the office that there were a set of used rams in the trailer and directed them to check whether they could be installed.

7. [44]

   Mr Sanchez deposed that he did not carry out any welding to the trailer other than what was required to manufacture the ramps and to attach them to the trailer body. There was no welding of any bracket required to be attached to either of the ramps for their manufacture or their attachment to the trailer body.

8. [45]

   On or about 4 September 2006, Mr Sanchez observed that a fully automatic hydraulic lifting system including one hydraulic ram on the left hand rear and one hydraulic ram on the right hand rear had been installed on the trailer. The hydraulic rams were not the hydraulic rams he had left in the trailer.

9. [46]

   Brackets had been welded to the lower left and right of the rear of the trailer, respectively securing the left and right hand hydraulic rams to the trailer body. Brackets had also been welded to the left and right hand rear ramps, respectively securing both ramps to the left and right hand rear hydraulic rams.

10. [47]

    None of the welded brackets referred to above were welded by Mr Sanchez or under his instruction. He deposed that he did not know who carried out those welds but he can say that the brackets were not attached to the ramps when he delivered the trailer to ROC Services in July 2006 and they were attached when he next saw the trailer and ramps on 4 September 2006. The hydraulic rams were connected to the welded brackets at that time. (Statement [5]-[23]).

11. [48]

    In summary, Interfreight’s position is that it did carry out work on the trailer but did not weld the brackets to the ramps and body of the trailer. The brackets were not attached to the trailer or ramps when Mr Sanchez delivered the trailer to ROC Services in July 2006 but were attached after they had installed the hydraulic system and were observed by Mr Sanchez upon inspection when he came to collect the trailer in September 2006.

ROC Services’ statements

1. [49]

   Mr Nabil Fahmy is a director of ROC Services and a licenced motor mechanic. His statement is dated 22 October 2014. In his statement he deposes that he examined the original job card, job sheets, sales orders, handwritten job cards and tax invoice and noted the absence of any reference to manufacturing mounts or making mounts. This led him to conclude that ROC Services did not supply or attach the metal mounting points to the trailer when it installed the hydraulic system on the trailer. Mr Fahmy deposed that had ROC Services been responsible, he would have expected the job description and other records to include a reference such as “manufacturing mounts” in the job description and other records. An additional fee would also have been charged for this work.

2. [50]

   Mr Fahmy stated that there is nothing in ROC Services’ original records to indicate that ROC Services supplied and welded reinforcing steel, which would have been recorded if ROC Services had done the work. Mr Fahmy deposed that it would be highly unusual for ROC Services to weld lugs/brackets in place when installing hydraulic cylinders as this is something they did less than once each year. Usually they would only undertake such welding work in situations where the original lugs were damaged and could not be reused or if the exact cylinder being replaced could not be found and a different model with a different size mounting bracket was used. He says that there is no evidence to suggest that either of these two factors were in play on this occasion. (Statement [10], [12] and [16]).

3. [51]

   Mr Adrian Hall was a partner of ROC Services with Mr Fahmy. His statement is undated. His primary role at ROC Services was to oversee the operations of the business’ workshop, while Mr Fahmy was primarily responsible for the business’ financial operations.

4. [52]

   After he reviewed the relevant documents, Mr Hall noted that there was no reference in the documents to the installation of a mount/lug. He deposed that it is his view that ROC Services did not carry out this work and that if ROC Services had carried out this work, he would have created a drawing of the mounts and a record of an order for the corresponding type of steel at or around the relevant time would exist. He had no recollection of taking springs off a spring-operated trailer, which is a feature of the work that had to have been carried out on the trailer. He deposed that replacing and welding the mounts to the trailer was not the type of work ROC Services carried out and the fact that it did not occur was supported by the available documents. (Statement [8]-[20]).

5. [53]

   In Mr Hall’s supplementary report dated 25 February 2015 he noted that the trailer was defected on two occasions after ROC Services installed the hydraulic system and one of these notices was issued before the date of Mr Zhang’s injury. He observed that when the trailer received these defect notices, the ramps had been removed in order to repair the trailer and fit the gear. He noted that inconsistent repairs appeared to have been done to different sides of the trailer and repairs had been carried out on more than one occasion. (Supplementary statement [2]-[4]).

6. [54]

   Mr Dion Matsrotis was employed by ROC Services as a third year apprentice hydraulic fitter and provided a statement dated 26 November 2014. He was responsible for replacing hydraulic rams on existing hydraulic systems, making hydraulic hoses, and replacing or repairing seals on hydraulic hoses. He has been provided with a copy of the records relating to work carried out on the trailer by ROC Services. He wrote the words, symbols and numbers which appear under the column headings “Part No.”, “Serial No.” and “No. Of” on the job sheets dated 15 August 2006. He did not write the words which appear in the first two rows of the tables on the job sheets. He noted that the records relating to work carried out on the trailer do not refer to the manufacture or installation of mounting brackets or lugs on the trailer. He deposed that if ROC performed this work then he would expect that the details of the conversion would be outlined in a design or drawing. (Statement [5]-[12]).

7. [55]

   Robert Cox was employed by ROC Services as a hydraulic fitter between 2000 and 2014. He was responsible for installing and repairing hydraulic systems. He reviewed the relevant records and a photograph of the broken mounting bracket or lug. He has no recollection of performing work on the trailer and there is nothing in the records to suggest he did. He says that the records do not refer to the manufacture or installation of mounting brackets or lugs on the trailer. If ROC was responsible for manufacturing and installing the mounting brackets or lugs on the trailer, then he expected this would have been referred to somewhere in the records.

8. [56]

   Mr Cox deposed that, as a general rule, ROC Services did not carry out structural work such as converting a spring loaded trailer ramp system to a hydraulic system, or manufacturing and installing mounting brackets or lugs for hydraulic systems. If a client ever approached him to perform this type of work during his employment at ROC Services he would have told them to take the trailer to a body builder to have the work done as ROC Services did not perform that kind of work. He does not recall ever manufacturing or installing a mounting bracket or lug like the one shown to him.

9. [57]

   Mr Cox noted that the lower part of the mounting bracket or lug appeared to have been welded onto an existing bracket. The lower part of the mounting bracket or lug appeared to have been fabricated from 25mm bar stock. The parts referred to in the job sheets did not include 25mm metal bar stock. If ROC Services manufactured the mounting brackets or lugs then he would have expected the job sheets to refer to 25mm bar stock as the client would have been charged for the steel. This suggested to him that ROC Services did not manufacture the mounting brackets or lugs on the trailer.

10. [58]

    Finally, it appeared to him that the mounting bracket or lug was welded in place using a stick welder. ROC Services did not have a stick welder in 2006 and only had MIG welders. He considered that it was therefore unlikely that ROC Services was responsible for welding the mounting bracket or lug onto the trailer. (Statement [3] to [12]).

11. [59]

    Mr John Tichonzuk was employed by ROC Services between 1999 and 2007 as a service manager. His statement is undated. He deposed that he created the job card dated 15 August 2006 and wrote the following words:

12. [60]

    He also created the job sheets dated 15 August 2006 and wrote the words which appear in the first two rows of the tables of the job sheets. He did not write the words, symbols or numbers which appear under the column headings “Part No.”, “Serial No.” and “No. Of”. Mr Tichonzuk noted that the job card and job sheets do not refer to the manufacture or installation of mounting brackets or lugs on the trailer which hold the hydraulic cylinders. He deposed that if ROC Services had performed this work, he would have detailed it in the job description on the job card and an additional fee would have been charged for this labour, including a fee for the welding. While is now not able to recall the job without reference to the job card, the absence of any reference to the manufacture or installation of the mounting brackets or lugs suggests to him that ROC Services did not undertake this work on the trailer and that the trailer already had mounting brackets or lugs when it arrived at ROC Services in August 2006. (Statement [5] to [8]).

13. [61]

    In summary, the plaintiff does not have any knowledge as to the modifications that have been carried out by Interfreight and ROC Services. Interfreight’s position is that as at 28 June 2006, the ramps were fitted to the trailer body by the hinge mechanism only. But in August 2006, an employee of Interfreight observed both the left and right hand rams were attached to the ramps by welded brackets. In August 2006, an employee of ROC Services also observed that when went to undertake the modifications, the trailer already had mounting lugs or brackets on it. The modifications carried out by ROC Services are peculiarly within its knowledge. Similarly, the modifications carried out by Interfreight are peculiarly within its knowledge. While some explanation has been given as to who wrote up some of ROC Services’ records, no real explanation of what those notations mean has been given in relation to the hydraulic rams on the trailer. While ROC Services admitted it carried out modifications to the trailer, its position is that it was unlikely that it was responsible for welding the mounting brackets or lugs onto the trailer.

14. [62]

    Hence there is an evidentiary gap as to who carried out the welding of the brackets, one of which ultimately failed. Both Interfreight and ROC Services admit they did modification work on the trailer but assert that they did not weld the mounting brackets or lugs onto the trailer. I accept that at trial, the witnesses who have prepared statements can be cross examined by counsel for the plaintiff. However, without explanations of ROC Services’ records it is very difficult for the plaintiff to prove who was more likely than not to have carried out the welding of the lugs. In my view, the plaintiff has established special reasons. The interrogatories have been administered at this time because the plaintiff needed to obtain the expert report of Dr Gillies in order to frame the interrogatories. Hence, these interrogatories were necessary and in the interests of a fair trial at the time they were sought. In my view the request for interrogatories satisfied the requirements set out in UCPR 22.1(3) and 22.1(4).

15. [63]

    Counsel for ROC Services has made objections to specific interrogatories pursuant to UCPR 22.2, to which I now turn.

Specific objections

1. [64]

   Other than interrogatories 8 and 9, the specific objections can be summarised as being made on the basis that they are oppressive in form, not necessary, unreasonable, not bona fide for the purpose of the action and constitute fishing. So far as interrogatories 1 to 6 are concerned, I have already explained that in my view it is necessary for explanations to be provided in relation to the records of ROC Services. Interrogatories 7 to 12 refer to whether or not an advice from an engineer was sought. As earlier outlined, counsel for ROC Services conceded that if an engineer’s report was in existence it was caught by the schedule in the subpoena. No engineer’s report has been produced.

Interrogatory 9

1. [65]

   Interrogatory 9 reads:

2. [66]

   So far as interrogatory 9 is concerned, counsel for ROC Services submitted that they were impermissible as they asked questions directed to the corporate mind. Counsel referred to the decision of Patten J in O’Brien v Little [2007] NSWSC 64 where his Honour (at [20]) adopted the reasoning of Street J in Tooth & Co Ltd v Lane Cove Municipal Counsel (No 4) (1968) 2 NSWLR 17:

3. [67]

   Senior counsel for the plaintiff referred to Kelly v Raymor (Illawarra) Pty Ltd [1981] 1 NSWLR 720 where McLelland J stated:

4. [68]

   In my view, those involved in the modifications of the trailer have prepared witness statements and this interrogatory can be directed to them. I would allow it.

5. [69]

   The balance of the interrogatories are not oppressive or unreasonable nor do they constitute fishing. In my view, they are necessary. Hence, I allow the interrogatories to be administered.

6. [70]

   I make an order that leave is granted to the plaintiff to administer the interrogatories annexed to the end of this judgment and marked “A” to the seventh defendant. The seventh defendant is to answer these interrogatories with verification within 14 days.