Brown v Hobart Public Hospitals Board

[1987] TASSC 115

Serial No B45/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Brown v Hobart Public Hospitals Board [1987] TASSC 115; B45/1987

PARTIES:  BROWN
  v
  HOBART PUBLIC HOSPITALS BOARD

FILE NO/S:  WC 49/1986
DELIVERED ON:  28 October 1987
JUDGMENT OF:  Nettlefold J

Judgment Number:  B45/1987
Number of paragraphs:  6

Serial No B45/1987
List "B"
File No WC 49/1986

BROWN v HOBART PUBLIC HOSPITALS BOARD

REASONS FOR JUDGMENT  NETTLEFOLD J

28 October 1987

1. In stating the conclusions in this case I resort to a pointed brevity. The conclusions are:

1I find that it is more probable than not that the plaintiff suffered injuries by accident while travelling between her place of employment and her place of residence.

2I do not find that the injuries were received during or after an interruption or a deviation from her journey.

3I do not find that the injuries were received during or after a break in her journey.

4I do not find that it has been proved that the plaintiff's injuries are attributable to her serious and wilful misconduct.

1. Putting it even more briefly I find that the plaintiff has discharged the burden of proof which rests with her. The defendant has failed to discharge the burden of proof which rests with it.

1. The important considerations are the following:–

(a)Mrs Lisa gave clear evidence of seeing the plaintiff at the hospital at the critical time. On the day following the accident she was told of Mrs Brown's accident which would have provided an occasion for her to recall the critical meeting on the previous evening.

(b)The time and place of the accident and direction of travel supports the plaintiff's case.

(c)The plaintiff's case receives some further support from Mr Scott's evidence. But, in view of the evidence about the consumption of liquor, that support is not as great as otherwise it would be.

(d)There is an abundance of evidence that she was at work at some time during the afternoon in question. There is clear evidence that she was wearing a uniform and name tag when injured. Even if she behaved as her alleged answers to First Class Constable Wilson suggests she did, on the totality of evidence, it is more probable than not that she left work at the time she claims.

(e)A feature of this case which should not be over– looked is this: she could have a valid claim, and I am affirmatively persuaded that she has, and, yet, there could be unsatisfactory features of her evidence, which could flow from the risk she perceives to her future employment if she told the whole truth. The case takes the mind to Lonergan v The Queen [1963] Tas SR 158 and R v Lucas [1981] QB 720 at 724.

1. Conclusions 2 and 3 (above) are clear. To find the contrary would be to speculate.

1. Conclusion 4 (above) is a negative proposition. Assuming she consumed the liquor which it is alleged she consumed, it was a small amount, one drink about 2½ hours before the accident and another about 1½ hours before the accident. The effects of the liquor would have been increased by the taking of small amounts of prescribed medication, not shown to have been taken otherwise than as prescribed. The evidence does not show that, at the time, she was conscious of the fact that the liquor and the drugs, being central nervous system depressants, each would increase the effect of the other to a substantial degree and, thus, give rise to a substantial risk of injury. The defendant has failed to establish a case falling within the decisions referred to in Hills v Brambles Holdings Ltd, Green CJ, 20/87.

1. For these reasons the plaintiff should succeed.