Gleeson v State of Tasmania

[2000] TASSC 26

[2000] TASSC 26

CITATION:              Gleeson v State of Tasmania [2000] TASSC 26

PARTIES:  GLEESON, Lorraine Mary
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1125/1998
DELIVERED ON:  6 April 2000
DELIVERED AT:  Hobart
HEARING DATE:  27 March 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  P Turner
           Respondent:  L K Mackey
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  Jennings Elliott

Judgment  Number:  [2000] TASSC 26
Number of paragraphs:  4

Serial No 26/2000
File No 1125/1998

LORRAINE MARY GLEESON v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COX CJ

6 April 2000

Appeal from the Master in respect of interrogatories

1. The applicant defendant was sued by the respondent plaintiff for damages for injuries allegedly sustained by her when, as an employee of the applicant caring for a child suffering from cerebral palsy, "she attempted to stop the child from falling after the child had had a spasm and flung her arms out whilst the plaintiff was holding her thereby losing her grip and having to grab her to stop her from falling" (Statement of Claim, par3).  Among the particulars of negligence alleged against the applicant was failing to train and educate the plaintiff in the correct method of lifting the child so as to avoid back injury.

1. The plaintiff objected to answer the following two interrogatories on the basis that they are too wide, irrelevant and oppressive:

"INTERROGATORY NO 4

Prior to the accident had you:

(a)been given any direction (and if so, specify whether the same was oral or in writing, or both) as to how to lift the child?

(b)(i)been given any, and if so, what direction or instruction (specify which) as to how to safely lift any person; and

(b)(ii)    if so, specify whether the same was oral or in writing; and

(b)(iii)   when it was given; and

(b)(iv)   by whom it was given.

…

INTERROGATORY NO 11

Had anything like the accident occurred to you before whilst you were employed by the Defendant?"

"The child" was defined for the purposes of the interrogatories as "the child referred to in paragraph 3 of the Statement of Claim".

1. As to interrogatory No 4, the applicant is, in my view, entitled to make the enquiry pursuant to the Rules of the Supreme Court, O33, r3.  Part (a) addresses a fact directly in issue and raised by the plaintiff, namely that the defendant failed to train and educate her in the correct method to lift the child.  The defendant is entitled to enquire as to the directions given to her in respect of "the child".  The fact that no time is specified apart from the enquiry being directed to "prior to the accident" and could therefore embrace the whole of the child's sojourn at the institution while the plaintiff was employed there, does not, in my view, make the interrogatory oppressive in the sense of demanding an unreasonable effort in order to properly answer it.  Part (b)(i) widens the enquiry so as not to confine it to a direction or instruction related solely to the child.  Objection is made that this, too, is oppressive for the same reason, but in my view, it is not.  Objection is also made on the basis that it could include directions or instructions from persons outside the scope of the defendant's authority, such as members of the child's family.  I think the use of the words "direction or instruction" makes it clear that the enquiry is directed only to directions or instructions given by those with authority over the plaintiff.  Part (b)(ii), (iii) and (iv) are logical extensions of (b)(i).  They stand or fall with it.  In my view, the whole of interrogatory No 4 is legitimate and I order the plaintiff to answer each part of it.

1. As to interrogatory No 11, the objection that it is vague is valid, in my opinion.  "The accident" is defined as meaning "the events giving rise to the personal injury alleged to be suffered by the plaintiff in the Statement of Claim".  What amounts to "anything like" those events is too vague.  Any two sequences of events may contain some similarities to each other.  The difficulty with the interrogatory is that it insufficiently indicates what points of similarity would render an earlier sequence "anything like" the events giving rise to the plaintiff's injury in this case.  Paragraph 3 of the Statement of Claim is to this effect:

"3Whilst in the process of laying the child down on a mattress on the floor in the Unit the plaintiff suffered personal injury when she attempted to stop the child from falling after the child had had a spasm and flung her arms out whilst the plaintiff was holding her thereby losing her grip and having to grab her to stop her from falling."

Does the question embrace an incident in which the child was being picked up, as opposed to being laid down, on a mattress, or on a cot, or in a bath?  Is it intended to include a mishap bearing some similarities to the present, but involving another child?  If prima facie so, does the age or the weight of the other child or the existence of some other circumstance constitute a reason why the other mishap can no longer fairly be described as "something like" the accident the subject of the action?  There is a host of other possibilities why some other incident having on one view certain similarities to the present may yet, on another view, be attended by such dissimilar circumstances as to make comparison unrealistic or unfair.  In my view, this interrogatory is oppressive because of its vagueness and the application to compel an answer to it is dismissed.