Douglas v The State of Tasmania
[2004] TASSC 131
•12 November 2004
[2004] TASSC 131
CITATION: Douglas v The State of Tasmania [2004] TASSC 131
PARTIES: DOUGLAS, Vickie
v
THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 134/2002
DELIVERED ON: 12 November 2004
DELIVERED AT: Hobart
HEARING DATES: 8 November 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Procedure – Discovery and interrogatories – Interrogatories – Irrelevance.
Supreme Court Rules 2000 (Tas), rr406 and 410.
Aust Dig Procedure [467]
REPRESENTATION:
Counsel:
Plaintiff: R A Browne
Defendant: T J Ellis SC
Solicitors:
Plaintiff: Fitzgerald and Browne
Defendant: Director of Public Prosecutions
Judgment Number: [2004] TASSC 131
Number of Paragraphs: 20
Serial No 131/2004
File No 134/2002
VICKIE DOUGLAS v THE STATE OF TASMANIA
REASONS FOR DECISION MASTER S J HOLT
12 November 2004
The plaintiff has applied for orders that the defendant answer some interrogatories which are the subject of objection and answer further some other interrogatories.
Because the objections include claims of irrelevance I begin with a brief outline of the plaintiff’s case as pleaded. The plaintiff claims damages from the State of Tasmania for psychiatric injury, namely, a pathological grief reaction, suffered by her after learning that her 18 year old son, a detainee on remand at the Risdon prison, had committed suicide and then subsequently learning that her son less than 48 hours earlier had suffered injuries consistent with him having been sexually assaulted. She pleads that her son then aged 17 years, was placed on remand at the prison in October 1998 and remained on remand there until his death on 4 August 1999. The plaintiff pleads that during the course of her son’s remand she suffered distress and anxiety because of concerns about the prison environment and her son’s fragile state of mental health which eventually, when combined with the news of the suicide and sexual assault, caused her psychiatric injury. The claim appears to be that news of the suicide was particularly distressing as the suicide was caused by the things that the mother was attempting to protect her son from. In particular lack of adequate mental health care when her son exhibited suicidal tendencies; exposure to potential sexual assailants and her son’s feelings of isolation and helplessness.
A necessary part of the mother’s claim is that the State being responsible for the operation of the prison, was under a legal duty to take reasonable care to avoid psychiatric injury to her as the parent of a detainee. For such a legal duty to have existed there must have been a sufficient relationship between the State as the prison authority and the mother to give rise to the duty. To establish the necessary proximity to give rise to the alleged duty foreseeability of injury and the nature of the relationship between mother and the prison authority are relevant as criteria of responsibility. As explained in Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 at par18, liability for damages for psychiatric injury is not limited to cases where the injury is caused by a sudden shock, or to cases where the plaintiff has directly perceived the distressing event or its immediate aftermath.
In Annetts, the court was asked to assume some facts for the purpose of deciding whether the assumed facts if proven were sufficient for a duty of care to exist. The assumed facts were as follows. The parents of a 16 year old boy gave permission to the defendant, the proprietor of a cattle station, to employ their son as a jackeroo, in exchange for assurances that he would be constantly supervised and well cared for. Contrary to the assurances the employer sent the son to work alone as a caretaker at a remote location. Several weeks later the employer discovered that the boy was missing and had reason to suspect that he was in grave danger of injury or death. The parents were informed. Months later the boy’s vehicle was found bogged in the desert and shortly afterwards the remains of the boy who had died of dehydration, exhaustion and hypothermia were found. The result was psychiatric injury to the parents. Features in that case of the relationship between the parents and the alleged tortfeasor which were held to be sufficient at law to give rise to an independent legal duty of care owed by the employer to the parents were:
hThe parents owed duties to their son, as he was not of full age. They sought to fulfil these duties by committing him to the care of the employer (par304).
hAlthough not specifically pleaded there was a contractual relationship between the parents and the employer. In particular, the parents gave their permission to the employer to employ their son on the cattle station only in consideration of the employer’s assurances to them that the boy would be supervised and well cared for (par144).
(See also pars37, 54 and 358.)
The facts of this case are quite different. Here the plaintiff was of full age at the time of his death and the preceding sexual assault which it is said contributed to the suicide. There was no arrangement between the mother and the State as prison authority whereby the son was detained, he was in prison by compulsion. No assurances are alleged to have been given by or on behalf of the State as prison authority to the mother regarding the care to be given to her son. The claim of a sufficient relationship between the State and the mother such as to give rise to a legal duty to take reasonable care to avoid psychiatric injury to the mother in general terms is pleaded and particularised as follows:
h The mother and son relationship.
h Incarceration of the son at the prison.
h Management of the prison by servants or agents of the State.
h The young age and physical and mental vulnerability of the son.
hThe significant interest, which known to the State, the mother took in her son’s well being as demonstrated by her regular visits to her detained son; her frequent contact with the prison to check on her son’s well being and provision by her to her son of professional counselling services, clothes, money and magazines.
Whether these features, if proven, can be sufficient to impose on the State a legal duty to take reasonable care to avoid psychiatric injury to the mother awaits determination.
The interrogatories are concerned with obtaining information and evidence supporting the matters asserted to give rise to the claimed legal duty and the alleged breaches.
Pursuant to the Supreme Court Rules 2000, r406, a party is entitled to administer interrogatories for purposes which include obtaining admissions of fact and answers as to any facts directly in issue or facts the existence or non-existence of which are relevant to the existence or non-existence of facts directly in issue. By r410(1), the court is empowered to order a person interrogated to answer an interrogatory which the person has objected to answering and to order a person interrogated to answer further any other interrogatory.
The interrogatories, objections and answers which are in dispute are as follows:
“INTERROGATORY NO 4(b)
[(a) During the period of remand, was Chris Douglas accommodated in yards within Risdon Prison with prisoners or detainees known by the Director to be a convicted paedophile and/or sexual offenders?]
(b) If yes to (a), identify
(i) the yard or yards in which Chris Douglas was so accommodated;
(ii) the periods when Chris Douglas was so accommodated, by reference to dates;
(iii)the names of those convicted paedophiles and/or sexual offenders with whom Chris Douglas was accommodated in the course of the period referred to in (a).”
Objection:
“[(a) Yes.]
(b)I object to answering interrogatory 4(b) on the ground that it is irrelevant to any matter in issue, vexatious and fishing.”
“INTERROGATORY NO 8
(a) Did the defendant record visits to Risdon Prison on any occasions between the 27th October 1998 and the 4th August 1999 made by the plaintiff?
(b)If yes to (a),
(i)On what dates did the plaintiff visit Risdon Prison?
(ii)What times did the plaintiff visit on any such occasions?
(iii)Identify the document that recorded those visits.”
Objection:
“I object to answering interrogatory 8 on the ground that it is irrelevant to any matter in issue, and inquires as to the contents of documents which are, have been or could be the subject of discovery, if relevant.”
“INTERROGATORY NO 37
(a) Between the 4th February 1999 and the 4th August 1999, were standards in place for the measurement of the performance of the Forensic Mental Health Service?
(b) If yes to (a), what were the standards?
(c) If yes to (a), when, if at all, was the Forensic Mental Health Service assessed against those standards?
(d) In the course of any such assessment of the Forensic Mental Health Service against those standards, state whether the Forensic Mental Health Service met any of the performance standards set for it, and, if so, which standards.”
Objection:
“I object to answering interrogatory 37 on the ground that it is fishing, irrelevant to any matter in issue and insufficiently imprecise [sic] to admit of answer.”
“INTERROGATORY NO 42
(a) During the period of remand did the Director through his employees or agents receive magazines from Risdon Vale newsagency for the use by Chris Douglas?
(b) If “yes” to (a), on what date or dates were the magazines received?”
Objection:
“I object to answering interrogatory 42 (second occurring) as it is irrelevant and does not relate to any matter in issue.”
“INTERROGATORY NO 6(d)
…
(d) As to the visits formally permitted by the Director and referred to in (c) above, did the Director on any such occasion that he gave formal permission to Marilyn Boyle to visit Chris Douglas, permit Marilyn Boyle to
(i) provide counselling for Chris Douglas.
(ii) provide support services for Chris Douglas;
(iii)advocate on Chris Douglas’ behalf to prison authorities in respect of Chris Douglas’ welfare?”
Answer:
“6(d)The Defendant does not know although it is likely the purpose of the visits was to provide him support, if not “support services” as these interrogatories define.”
“INTERROGATORY NO 9
(a)During the period of remand, did the defendant through the Director receive money from the plaintiff to be held by the Director on behalf of, or for the use of, Chris Douglas?
(b)If yes to (a), on what dates was any money received from the plaintiff for such purpose and how much money was received on each such occasion that money was received?”
Answer:
“9(a) & (b) Between 17 July 1998 and 3 August 1999, 35 entries of money were paid into Chris Douglas’ private account, ranging between $20 and $200. The Defendant does not know if the Plaintiff paid this, but does not dispute it if she says she did.”
“INTERROGATORY NO 23(b)(ii) and (iii)
…
(b) If any of the correctional officers referred to in (a) had been trained to recognise mental disturbance in detainees or prisoners, identify the training provided by reference to
…
(ii) the nature of the training and the length of any such training;
(iii) the content of any such training or training course.”
Answer:
“K Salter – Suicide Awareness & Prevention refresh delivered by Ian Balmer on 24.10.95
A van Leeuwin – Suicide Awareness & Prevention refresh delivered by Estelle McCarthy on 26.9.95
D Lehner – Recruit Training – Suicide Awareness & Prevention delivered by Ian Balmer on 24.11.97 & Forensic Psychiatry delivered by Dr W Lopez on 5.12.97
B Thomas – Recruit Training – Suicide Awareness & Prevention delivered by Ian Balmer on 16.3.94, Inmates with Mental Disabilities delivered by Dr W Lopez on 10.3.94, Suicide Awareness & Prevention refresh delivered by Estelle McCarthy on 10.10.95
A Cowley – Recruit Training – Suicide Awareness & Prevention delivered by Ian Balmer on 9.11.98 & Inmates with Physical & Intellectual Disabilities delivered by Dr W Lopez on 20.11.98
S Lawler – Recruit Training – Suicide Awareness & Prevention delivered by Ian Balmer on 24.11.97 & Forensic Psychiatry delivered by Dr W Lopez on 5.12.97
M Wildbore – Recruit Training – Suicide Awareness & Prevention delivered by Ian Balmer on 24.11.97 & Forensic Psychiatry delivered b Dr W Lopez on 5.12.97”.
Interrogatory 4(b) seeks details of the locations and times the plaintiff’s son was housed with convicted paedophiles and sexual offenders and the names of those convicts throughout the whole of the period of remand. The plaintiff has alleged that her son was accommodated with paedophiles and other sexual offenders; he hated being so housed; that she became distressed and upset on learning that her son was so housed and that that distress and upset was a contributing factor in her eventually suffering the claimed psychiatric injury, namely, a pathological grief reaction. There are also allegations that the son was sexually assaulted within 48 hours prior to his suicide and that learning of this assault exacerbated and intensified the symptoms comprising the mother’s adjustment disorder ultimately resulting in the claimed psychiatric injury. Whether or not the son was housed with paedophiles and sexual offenders goes directly to issues raised on the pleadings. That aspect is the subject of interrogatory 4(a) and the defendant has answered the interrogatory by admitting that the son was mixed with sexual offenders during the period of remand. Interrogatory 4(a) is relevant and it has been answered. There is nothing which I can find in the pleadings or particulars, however, to indicate that details as to the particular places and times and the names of the sexual offenders have any bearing on the state of distress suffered by the mother which ultimately led to the alleged psychiatric injury. In my view interrogatory 4(b) was properly objected to as being irrelevant. Even, however, if it has some relevance in informing the plaintiff of evidence of a fact in issue (the allegation that her son was accommodated with paedophiles and sexual offenders having been denied in the defence) the interrogatory goes beyond what is necessary or sufficiently material in the context of the action. As such it is liable to be disallowed under r410(3): Royal & Sun Alliance Assurance Australia Ltd v Falzon [2002] TASSC 52. Even if I had found the interrogatory to be relevant and permissible under r406(1), I would have disallowed it under r410(3). There will be no order requiring the defendant to answer interrogatory 4(b).
Interrogatory 8 relates to the allegation in support of the claimed existence of the legal duty of care, that known to the State the mother was a frequent prison visitor. In par24 of the statement of claim the plaintiff alleges that she visited her son three or four times per week for a substantial part of the remand period. This is an allegation which the defendant has not admitted in its defence. The objection that the interrogatory is irrelevant to any matter put in issue by the pleadings cannot be sustained. However, the objection goes on to complain that the interrogatory enquires as to the existence and content of records which the defendant may hold.
It is common ground that the defendant has caused to be filed and served an affidavit verifying its list of documents. The forms of the list and affidavit required by the rules compel the party making discovery to list all relevant documents including those in respect of which a claim of privilege is made and those which the party once had but no longer has. In other words, I have no reason to think that the plaintiff does not already have an affidavit filed on behalf of the defendant stating whether relevant visitor records exist or once existed. A further statement is not required and an interrogatory ought not to be administered for the purpose of testing the sufficiency of an affidavit verifying a list of documents. I was told of no suggestion by the plaintiff that visitor records are privileged or have been lost or destroyed and so the appropriate way for the plaintiff to ascertain the contents of those records is to inspect them and the appropriate way to prove the contents of those records is to tender them rather than attempt to elicit a description of them from a party or other person. An interrogatory effectively asking whether a party has or did have certain documents is objectionable and such an objection was upheld in Hall v Truman Handbury & Co (1885) 29 ChD 307 where Cotton LJ said at 320 – 321:
“It is not an interrogatory the answer to which will assist him in making out his case at the trial of the action. The evidence which he hopes to get by means of it is that which he will obtain under an order for the production of documents in case the interrogatory should be answered in the sense that there are such documents in the Defendant’s possession. In my opinion Mr Justice Kay was quite right in refusing to order the interrogatory to be answered, the Defendant declining to answer it on the ground that he was really called upon to make a further affidavit as to documents. Though the interrogatory refers to particular classes of documents it is expressed in perfectly general terms. It amounts to a cross-examination of the Defendant on his former affidavit as to documents, and that is a thing which cannot be allowed. Jones v Monte Video Gas Company 5 QBD 556 was relied upon for the Plaintiff. But there the question was not whether the administration of interrogatories should be permitted, and nothing which was then said by the Judges of this Court was intended to support, or, in my opinion, does support the contention of the Appellant that an interrogatory such as this can be allowed. It is difficult no doubt to say what circumstances would justify the putting of an interrogatory as to documents to a party who has already made a sufficient affidavit of documents. But, if the Court is satisfied that, notwithstanding the affidavit, there is or may be some specified relevant document or documents in the possession of the party whom it is desired to interrogate, it may possibly be right to allow an interrogatory to be put whether that particular document, or those particular documents, is or are in his possession. But a prima facie case must be shown before such an interrogatory can be permitted, and it should be made the subject of a special application.”
Interrogatories which enquire after the contents of documents which are capable of being produced are also objectionable. Such an objection was upheld in Winterbottom v Vardon & Sons Ltd [1921] SASR 364 where Poole J said at 366 – 367:
“The fifth and sixth interrogatories are objected to on two grounds – (1) that they are interrogatories as to the contents of a written document: … I think the first ground of objection to answer is in each case sound. … The fifth interrogatory enquires whether it is not a fact that in the issue of ‘The Diggers’ Gazette’ of the 15th Nov 1919 there appeared the article allged to be defamatory. Now, a copy of the issue of a magazine or newspaper complained of (ie an original) is the best evidence of its contents, and unless the original is lost or destroyed, and that is not suggested, the interrogatory cannot be upheld. See Stein v Tabor (1874) 31 LT 444; Fitzgibbon v Greer (1875) 9 Ir CL 294. For the same reason the objection to answer the sixth interrogatory is sound also.”
There will be no order requiring the defendant to answer interrogatory 8.
Interrogatory 37 enquires as to the existence, content and compliance with performance standards in the Forensic Mental Health Service. In her statement of claim the plaintiff alleges that the Service employed its clinical director at the prison for the purpose of providing a clinical service to detainees and prisoners. It is alleged that no satisfactory support or counselling was being provided to the son, that the plaintiff knew of this and that this caused her to suffer anxiety, distress and agitation which when ultimately combined with other features including the plaintiff learning of the suicide and the possible sexual assault, caused the psychiatric injury. It is alleged that the State failed to adequately supervise and monitor the performance of the clinical director. These allegations are in dispute. In my view the matter of the standards, if any, relevant to aspects of the son’s mental health and his prison environment potentially impacting on his mental health during the period of detention is relevant. But the way in which the question has been framed takes the interrogatory well beyond that. The interrogatory enquires about performance measurement standards pertaining to all aspects of the work of the Forensic Mental Health Service rather than being confined to matters relevant to the role of the service within the prison and pertaining to matters relevant to the plaintiff or her son. The interrogatory is objectionable as being too wide. It is not divided into neat parts so that the party interrogated can answer unobjectionable parts and take objection to the rest. The defendant would need to exercise its own judgment as to the reasonable scope of the matters to be disclosed and if too restrictive an approach is adopted the defendant will be exposed to potential criticism. If too broad an approach is adopted the defendant will be providing information which it is not obliged to provide. Because the objectionable aspects of the interrogatory cannot be clearly separated from the unobjectionable aspects I consider the objection to the whole of the interrogatory to be sound and there will be no order requiring the defendant to answer interrogatory 37.
Interrogatory 42 enquires as to the magazines which the plaintiff refers to in particulars of her pleading for the purpose of showing that the State knew that the plaintiff cared about her son’s well being. The objection is confined to asserted irrelevance. Counsel for the defendant submitted that as the question relates to magazines received from the Risdon Vale newsagency rather than from the plaintiff an answer would not impact on any matter in dispute. I reject this submission. At trial the plaintiff may well give evidence that she arranged for the local newsagency to deliver to the prison magazines addressed to her son. An answer to the interrogatory would assist the plaintiff in proving that the magazines were not merely ordered, but in fact were delivered. Delivery of the magazines to the prison is one of the factors which the plaintiff asserts as going to the alleged relationship between the plaintiff and the State which the plaintiff says was such as to impose on the State a duty to take reasonable care to avoid psychiatric injury to her. The interrogatory relates to a matter in issue and there will be an order that it be answered.
Interrogatory 6(d) enquires as to whether, in the event that the Director of Corrective Services gave formal permission to professional counsellor Marilyn Boyle to visit the plaintiff’s son in prison, whether such permission encompassed authorising Ms Boyle to provide counselling, support and advocacy for the plaintiff’s son. In answer to a preceding question the defendant said that Ms Boyle’s visits “must have been authorised (permitted) by the Director”. As can be seen from the defendant’s answer to interrogatory 6(d) it seems to be likely that the defendant has misunderstood the question. The second part of the response indicates that the defendant through the officer authorised to answer the interrogatories, believed that the question related to Ms Boyle’s purposes rather than the scope of any permissions given. In my view, sub-pars(i), (ii) and (iii) call for specific response as to each of the three matters specified and if, when the question is interpreted in the way I say it should be the answer remains that the defendant “does not know”, that is all that need be said and the words which follow in the existing answer can be appropriately deleted. There will be an order that the defendant answer further interrogatory 6(d).
Interrogatory 9 enquires about money received by the Director of Corrective Services “from the plaintiff”. The defendant has answered that it does not know and the deponent of the affidavit verifying the answers has said in the affidavit that all proper enquiries have been made and that the answers given are true to the best of his knowledge information and belief. The answer includes some extra information, but the plaintiff does not complain that the extra information given corrupts the answer or cannot be conveniently severed from the responsive part of the answer if it is to be read into evidence at the trial. The plaintiff says that even if the defendant does not know who paid the money the defendant can still specify the dates and amounts of payments received for the benefit of the plaintiff’s son. That may well be so, but, the question is not enquiring about payments from all sources. It is specifically confined to payments received “from the plaintiff” and as the defendant does not know by whom the money was paid there is no more information which the defendant is required to give. Interrogatory 9 has been sufficiently answered in accordance with its terms and there will be no order that it be answered further.
The last of the disputed interrogatories are interrogatories 23(b)(ii) and (iii). The questions and answer have been set out in full earlier in these reasons. As can be seen the correctional officers receiving the training enquired after have been identified. In each case the answer on its face includes a brief description of the nature and content of the training. The answer does not purport to give a detailed or comprehensive description of the nature and content of the training given, but the interrogatory does not ask for such detail. It merely asks for identification of the training by reference to the features specified. The defendant has provided that identification by reference to the features requested except for “the length” of the training given to each.
It seems to me that the training already having been sufficiently identified, there is no necessity to provide as a further criterion of identification detail of the length of the training. Rule 410(3)(b) on its face confers upon the court a discretion as to whether or not it will order an answer or further answer and having regard to the matters specified in r409(3) and 410(3)(a) and in particular considerations of necessity and sufficient materiality, I will make no order requiring the defendant to answer further interrogatories 23(b)(ii) and (iii).
There will be an order that the defendant cause to be made, filed and served an affidavit answering interrogatory 42 and answering further interrogatory 6(d). I will hear counsel as to the time to be allowed for compliance.
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