Smith v Commissioner of Police [1999] NSWCC 4 (24 May 1999)

Last Updated: 5 July 1999

CITATION: Smith v Commissioner of Police [1999] NSWCC 4

PARTIES: Heather D Smith v Commisioner of Police

TITLE OF COURT: Compensation Court of NSW

JURISDICTION: Original

MATTER NO/S: NSWCC 4991 of 1997

DELIVERED ON: 24 May 1999

DELIVERED AT: Parramatta

HEARING DATES: 24 May 1999

JUDGMENT OF: Neilson J

NUMBER OF PARAGRAPHS: 12

CATCHWORDS: Workers Compensation Statutes & Delegated Legislation; Pleadings and Particulars. Particulars sought of respondent's Answer. Answer traverses allegations in Application for Determination. Held: Particulars cannot be ordered of a traverse. Respondent bearing no legal onus, the denial cannot be seen as a "pregnant negative".

REPRESENTATION

APPLICANT/S

Mr A Milshon (solicitor) instructed by Tzovaras Yandell

RESPONDENT/S

Ms S Illiadis (solicitor) instructed by F Hutchison

Compensation Court of New South Wales

Matter No 4991 of 1997

Heather D Smith

v

Commissioner of Police

24 May 1999

JUDGMENT

NEILSON J

1. This is an appeal under the Police Regulation (Superannuation) Act 1906. The applicant, Heather Dorothy Smith, claims that the death of her husband, Graham Bruce Smith, was caused by his having been "hurt on duty" as that term is used in the Police Regulation (Superannuation) Act 1906.

2. In para 1(a) of the application for determination, it is alleged that the deceased's death was due to suicide on 5 September 1996.

3. In para 2, it is specifically stated that the cause of death was a self-inflicted gun shot wound.

4. In para 10 of the application for determination, it is alleged that the nature of the deceased's police duties contributed to the deceased being "hurt on duty" by contracting a mental disease which caused him to commit suicide.

5. The respondent filed an answer on 16 April 1997. The application for determination had been filed on 2 April 1997. The relevant parts of the answer are as follows:

(a) that the applicant's husband, former Sergeant Smith, did not sustain any injury in the course of his duties or employment with the Police Service.

(b) that the death of the applicant's husband, former Sergeant Smith, was not caused by any injury sustained in the course of his duties nor was it the result of his employment with the Police Service.

(c) that the death of the applicant's husband, former Sergeant Smith, was due to other causes or causes unrelated to his employment with the Police Service.

(d) that the death of the applicant's husband, former Sergeant Smith, was caused by intentional self-inflicted injury.

6. The motion before me, notice of which was filed on 5 May 1999, seeks particulars of the allegations made in paras(a), (b) and (c) of the respondent's answer. The respondent has today withdrawn, at the suggestion of the applicant's solicitor and the Court, the allegation that was formerly (c). The employer, the respondent in these proceedings, bears no onus of proof. The onus of proof in these proceedings is carried by the applicant. Our traditional ways of thinking are that most things have a cause. It is common ground that the deceased committed suicide. One would hazard the guess that there would be a reason or reasons for his committing suicide.

7. The applicant bears the onus of establishing that the cause of the deceased's death was somehow related to his employment in the New South Wales Police Service. The respondent may submit and adduce evidence that there are other causes, but it bears no onus of proof. The applicant still requests particulars of the respondent's answer as pleaded in pars(a) and (b). The applicant does not seek particulars of the allegation (d), because it is common ground that the deceased's death was self-inflicted. The only issue is whether the deceased had the necessary mental capacity to form the intention to kill himself.

8. The principle of the common law is ei incumbit probatio qui dicit, non qui negat. The burden of proof is on him who alleges and not on him who denies. For this reason, it is long and well-established that particulars cannot be ordered of a traverse, that is, a denial of a positive allegation made in a pleading. The pars(a) and (b) of the respondent's answer are traverses.

9. The following commentary appears in Ritchies Supreme Court service under Pt16, r1:

Particulars will not be ordered of a pleading which merely puts the opponent to proof: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 at 605. This is so even where the defence traverses a wholly negative allegation in the statement of claim: Weinberger v Inglis [1918] 1 Chancery 133. If however, it is apparent that the defence, despite the negative form in which it is couched, will involve the defendant in an attempt to make out an affirmative allegation - i.e., it is a "pregnant negative" - particulars may be ordered. (Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 702 at 79; Chapple v Electrical Trades Union [1961] 1 WLR 1290 at 1293; [1961] 3 All England Reports 612 at 615; Howard v Borneman [1972] 1 WLR 863 at 868; [1972] 2 All England Reports 867 at 871; Dwyer v National Trustees Executors & Agency Company of Australasia Ltd [1939] VLR 96 at 101-2). Particulars may also be ordered if the real nature of the denial is in doubt; Johnstone v Sewell [1962] UWN 36.

10. In my view, this is not a case of "a pregnant negative", because the respondent's traverse of the applicant's allegation does not involve it in positively establishing anything on the balance of probabilities. The applicant has the onus of proof and must discharge it. I may not in the end be satisfied that it is the allegation made by the applicant which was the cause of the deceased's death. However, being not satisfied of something does not mean that I positively find some other cause. The case is analogous, as I have stated in argument with the solicitor for the applicant, with an allegation by a worker of an injury on a periodic journey between his place of abode and his place of employment on Monday, when he fell and broke his leg. That may be traversed by the respondent's answer. However, the respondent may then seek to establish positively that the deceased in fact fractured his leg whilst playing rugby on Sunday afternoon. That is not an uncommon scenario in litigation in this court. However, the respondent cannot be ordered to provide particulars of the traverse, nor be required to disclose what it may submit ultimately was the cause of the fracture of the applicant's leg. In those circumstances, the relief claimed in the motion filed on 5 May 1999 is refused.

11. Motion dismissed.

12. Judgment is to be ordered and placed with the papers.

Mr A Milshon (solicitor) instructed by Tzovaras Yandell appeared for the applicant.

Ms S Illiadis (solicitor) instructed by F Hutchison appeared for the respondent.