1942 Present: Moseley S.P.J. and Soertsz J.

JUSTINAHAMY v. OBISAPPUHAMY.



106-b.c. (Inty.) Colombo, 12,078.

Interrogatory-Action for damages caused by negligent driving-Interrogatory on the acts and omissions on part of defendant's driver permissible Interrogatory on method of assessment of damages not allowed-No part of defendant's defense.

The plaintiff sued the defendant for damages for loss of her husband whose death was caused by the negligent driving of the defendant's servant.

The defendant denied liability and set up contributory negligence.

Held, that the defendant was entitled to interrogate the plaintiff as to the acts and omissions constituting the alleged negligence on his part but that the plaintiff was not bound to answer an interrogatory concerning the method of assessment of her damages.

APPEAL from a judgment of the District Judge of Colombo.

J. E. M. Obeyesekere, for defendant, appellant.

E. F. N. Gratiaen (with him E. G. Wickramanayake), for plaintiff, respondent. .

Cur. adv. vult.

February 19, 1942. MOSELEY. J.

The plaintiff is suing the defendant for damages for the loss of her husband, whose death she imputes to the negligent driving of a servant of the defendant. She claims Rs. 5,000 damages. - The defendant in his answer, dated August 30, 1940, denies liability and sets up contributory negligence. On June 13, 1941, the defendant filed two interrogatories

the first of which was directed towards the alleged acts or omissions on the part 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. 5,000 set 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 material at this stage.

The defendant then applied for an order, as provided by section 100 of the Civil Procedure Code; requiring the plaintiff to answer. This appeal is from the refusal of the District Judge to make such an order. The learned District Judge in arriving at his conclusions considered the local authorities which had been brought to his notice, viz., -Ralph Macdonald & Co. v. The. Colombo Hotels Company 1[19 N. L. R. 109.] and Wijeratne v. The China Mutual Life Insurance Company[ 22 N. L. R. 43.], and considered that neither of these cases is of assistance to tl1e defendant in the present proceedings. He concluded his observations with the following words:-

" The onus of proving her damages lies on the plaintiff. The methods by which such damages are to be assessed are well known; and there should not be the slightest difficulty' for Counsel for the defence, while the trial is proceeding, to cross-examine the plaintiff and her witnesses on the question of damages. "

It seems to me that in regard to Ralph MacDonald & Co. v. The Colombo Hotels Company (supra) it is only necessary to observe that discovery was ordered by this Court in that case on the ground that it was" highly inconvenient, and a cause of extra expense, for actions to be tried piecemeal.." For the reason given by the learned District Judge in the observations which I have quoted above I cannot see that any similar situation involving inconvenience or expense is capable of arising in the present case. In Wijeratne v. The China Mutual Life Insurance Company (supra) the Court (per Bertram C.J.) seems to have been clearly of opinion that a trial might, in certain circumstances, take place piece-meal, and thought that before the defendant, in that case the Insurance Company, should be called upon to disclose its profits, the liability of the company to pay a share of the profits to the plaintiff should be established. The learned District Judge's view that neither case helps the. present defendant seems to me the correct one.

Counsel for the respondent drew our attention to the case of Ne