051-NLR-NLR-V-43-JUSTINAHAMY-v.-OBISAPPUHAMY.pdf
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MOSELEY J.—Justinahamy v. Obisappuhamy.
1942Present : Moseley S.P.J. and Soertsz J.
JUSTINAHAMY v. OBISAPPUHAMY.
106—D. C. (Inty.) Colombo, 12,078.
Interrogatory—Action for damages caused by negligent driving—Interrogatoryon the acts and omissions on part of defendant’s driver permissible—Interrogatory on method of assessment of damages not allowed—No partof defendant’s defence.
The plaintiff sued the defendant for damages for loss of her husbandwhose death was caused by the negligent driving of the defendant’sservant.
The defendant denied liability and set up contributory negligence.
Held, that the defendant was entitled to interrogate the plaintiff as tothe acts and omissions constituting the alleged negligence on his partbut that the plaintiff was not bound to answer an interrogatory concerningthe method of assessment of her damages.
^ PPEAL from a judgment of the District Judge of Colombo.
J. E. M. Obeyesekere, for defendant, appellant.
E. F. N: Gratiaenrespondent.
(with him E. G. Wickramanayake), for plaintiff.
Cur. adv. vult.
rebruary 19, 1942. Moseley J.—
The plaintiff is suing the defendant for damages for the loss of herhusband, whose death she imputes to the negligent driving of a servant ofthe defendant. She claims Rs. 5,000 damages. The defendant in hisanswer, dated August 30, 1940, denies liability and sets up contributorynegligence. On June 13, 1941, the defendant filed two interrogatories,
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MOSELEY J.—Justinahamy v. Obisappuhamy.
the first of which was directed towards the alleged acts or omissions on thepart of the driver. This interrogatory was answered. The second was in _the following terms : =—
“ How do you estimate the loss and damage amounting to Rs. 5,000set out in paragraph 5 of the plaint ? ”
The plaintiff’s answer to this interrogatory was as follows : —
“ I am advised that I need not answer as it is not sufficient materialat this stage. ”
The defendant then applied for an order, as provided by section 100 ofthe Civil Procedure Code, requiring the plaintiff to answer. This appealis from the refusal of the District Judge to make such an order. Thelearned District Judge in arriving at his conclusions considered the localauthorities which had been brought to his notice, viz., :—Ralph Macdonald& Co. v. The Colombo Hotels Company 1 and Wijeratne v. The China MutualLife Insurance Companyand considered that neither of these cases is ofassistance to the defendant in the present proceedings. He concluded hisobservations with the following words : —
“ The onus of proving her damages lies on the plaintiff. The methodsby which such damages are to be assessed are well known ; and thereshould not be the slightest difficulty for Counsel for the defence, whilethe trial is proceeding, to cross-examine the plaintiff and her witnesseson the question of damages. ”
It seems to me that in regard to Ralph MacDonald & Co. v. The ColomboHotels Company (supra) it is only necessary to observe that discovery wasordered by this Court in that case on the ground that it was “ highlyinconvenient, and a cause of extra expense, for actions to be tried piece-meal …. ” For the reason given by the learned District Judge in
the observations which I have quoted above I cannot see that any similarsituation involving inconvenience or expense is capable of arising in thepresent case. In Wijeratne v. The China Mutual Life Insurance Company,(supra) the Court (per Bertram C.J.) seems to have been clearly of opinionthat a trial might, in certain circumstances, take place piece-meal, andthought that before the defendant, in that case the Insurance Company,should be called upon to disclose its profits, the liability of the company topay a share of the profits to the plaintiff should be established. Thelearned District Judge’s view that neither case helps the present defendantseems to me the correct one.
Counsel for the respondent drew our attention to the case of NeckramDobay v. Bank of Bengalwhere the plaintiff sued the Bank for damages forthe improper sale of some Government promissory notes which had beendeposited as security for certain loans. The defendant Bank sought tointerrogate the plaintiff as to his method of estimating the specific amountof damages claimed. In the course of his judgment, Macpherson J.said : —“ If the interrogatory is intended to elicit the principle on which •the damages are estimated, the defendant is not entitled to discover onthe point. ”“ In any case, ” said he, “ the inquiry is premature, as the
> 19 N. L. R. 109.* 22 -V. L. R. 43.
3 14 Cal. 703.
Per era v. Perera.
215
question whether there has been any wrongful act committed and whetherthe plaintiff is entitled to any damages must be first determined Inthat case, the learned Judge had considered the English cases from whichhe deduced the principle that where the question is simply as to the amountof damages to be awarded, and the defendant wishes to satisfy the demand,he is entitled by means of interrogatories to elicit all the informationwhich will enable him to do so. The position was not, however, so clear*when the right to damages was in contest. It is not suggested in thecase before us on behalf of the defendant that there is any desire on hispart to satisfy the demands of the plaintiff.
In a recent case which came before this Court, viz., Wijesekere v. TheEastern Bank,, Limited Nihill J., in disallowing interrogatories whichhad been ordered by a District Court, quoted the following observation ofSmith L. J. in Kennedy v. Dodson': —
“ The legitimate use and the only legitimate use of interrogatories isto obtain from the party interrogated admission of fact which it isnecessary for the party interrogating to prove in order to establish hiscase ; ”
So in the present case it seems to me that the defendant, having deniedliability and set up contributory negligence, was entitled to interrogatethe plaintiff, as he did, as to the acts and omissions constituting the allegednegligence on his part, but that the learned District Judge was right inrefusing to order the plaintiff to answer an interrogatory concerning theassessment of damages which matter formed no part of the defendant’scase.
I would therefore dismiss the appeal with costs.
Soertsz J.—I agree.
Appeal dismissed.