Alam v Rail Corporation New South Wales
[2008] NSWDC 265
•26 November 2008
CITATION: Alam v Rail Corporation New South Wales [2008] NSWDC 265
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 22, 23 October and 13, 21 November 2008
JUDGMENT DATE:
26 November 2008JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Judgment for the defendant.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to apply, such liberty to be exercised within three months of the date of judgment.
(4) Exhibits retained for 28 days.CATCHWORDS: TORT - plaintiff caught in train doors attempting to enter train after warning signals - whether boarding train inherently dangerous - defendant not negligent - EVIDENCE - CCTV footage - whether admissible - whether evidentary value of limited or restricted nature LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 56
Civil Liability Act 2002 (NSW), ss 5S and 15
Civil Liability Legislation Amendment Act 2008 (NSW), Schs 1 and 2
Motor Accidents Act 1988 (NSW)
Motor Accidents Compensation Act 1999 (NSW), Ch 5 and s 128(3)
Transport Administration Act 1988 (NSW), s 121CASES CITED: Allen v Tobias (1958) 98 CLR 367
Angel v Hawkesbury City Council [2008] NSWCA 130
Balasubramanian v Sara [1997] NSWCA 39
Beaton v McDivitt (1985) 13 NSWLR 134
BHP Pty Co Ltd v Mason and Anor (Supreme Court of South Australia, Debelle J, 7 November 1996, unreported)
Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956; [2008] NSWCA 144
Boyes v Collins (2000) 23 WAR 123; [2000] WASCA 344
Bridges v Pelley [2001] NSWCA 31
C Van der Lely NV v Bamfords Ltd [1963] RPC 61
Clark v New South Wales [2006] NSWSC 673
Dem Compagnie Pty Ltd v Telxon Australia [2004] NSWCA 66
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
Harrison v Melhem [2008] NSWCA 67
Hayes v Marquis [2008] NSWCA 10
Jones v Dunkel (1959) 101 CLR 298
Joslyn v Berryman (2003) 214 CLR 552
Mackenzie v Nominal Defendant [2005] NSWCA 180
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510
Morgan v Johnson (1998) 44 NSWLR 578
NSW Department of Housing v Hume [2007] NSWCA 69
People v Bowley 59 Cal 2d 855; 382 P 2d 591 (CA, 1963)
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692; [2008] NSWCA 204
R v Ames [1964-5] NSWR 1489
R v Lobendahn (1980) 5 Petty Sessions Review 2484
R v Travers (1958) 58 SR (NSW) 85
Schmidt v Schmidt [1969] QWN 3
Short v Barrett [1990] NSWCA 164
State v Pulphus 465 A 2d 153 (RI, 1983)
Stillwell Trucks Pty Ltd v McKay & Ors [2002] NSWCA 292
Talbot-Butt v Holloway (1990) 12 MVR 70
Transfield Services (Australia) v Hall [2008] NSWCA 294
United States Shipping Board v The Ship St Albans [1931] AC 632
White v White [2004] NSWSC 208TEXTS CITED: Government Gazette No. 145, 12 November 2008
Wigmore on Evidence (3rd ed, 1940), Vol 3
Young, P W, “Disclosure of Evidentiary Video Tapes in Personal Injury Litigation” (2001) 75(6) ALJ 353PARTIES: Plaintiff: Eugenie Alam
Defendant: Rail Corporation New South WalesFILE NUMBER(S): 3350 of 2007 COUNSEL: Plaintiff: Mr A Reoch
Defendant: Mr T H BarrettSOLICITORS: Plaintiff: Ron Kramer Associates
Defendant: Hicksons
Introduction
1. These are proceedings for damages commenced by the plaintiff (by way of Statement of Claim filed on 3 August 2007) for injuries she suffered at Pendle Hill Railway Station on 27 October 2006 when she attempted to board a train.
2. The issues in dispute in these proceedings are the following:
- (a) the circumstances in which the plaintiff was injured;
(b) if liability can be established, whether the plaintiff was contributorily negligent;
(c) issues of causation; and
(d) the quantum of damages to be awarded.
3. I will first consider the evidence relating to the circumstances of the plaintiff’s accident.
The Accident on 27 October 2006
4. The plaintiff is a 58 year old woman who was born in Lebanon. She has lived in Australia since 1974. She is divorced and lives with her 26 year old son, who suffers from Tourette’s syndrome. The plaintiff is on a disability pension, which she said in her evidence was because she has bilateral carpal tunnel, a condition unrelated to the accident. The plaintiff is able to speak English but clearly had difficulties with the unfamiliarity of the courtroom setting, and gave her evidence through an Arabic interpreter. She was at times nervous and some of her evidence was, to use Mr Reoch’s description in his submissions, dramatic, but I have taken into account the warnings of the Court of Appeal in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 concerning the dangers of misreading cultural factors into demeanour findings.
5. The plaintiff described how her accident occurred as follows. On the day in question she notices, as she went down the stairs towards the station, that the train she wanted to catch had just arrived on the platform. She waved to the train guard, who she noticed was talking on the phone, to get his attention. She called out, from her position whilst standing on the last step of the railway staircase: “I’m going to buy a ticket”. She said the guard replied “I’ll wait for you”.
6. The plaintiff then bought her ticket, came back to the train and put her right foot onto the train. Suddenly, she said, the doors closed. The other passengers started shouting for the train doors to be opened, and she felt the train about to move or actually move off. One of her legs had fallen between the train and the platform. She thought she was going to be killed. The doors then opened and the guard came to see her, holding his mobile phone in his hand.
7. The plaintiff said that the guard helped her up. She asked if she could be taken to the toilet, where she checked herself to see if she was all right. She then returned to the train and travelled to Parramatta to report the injury. She said the train guard “apologised for the mistake, about what happened”, and gave her his name on a piece of paper, as well as arranging for her to see the Manager at the Parramatta station.
8. In cross-examination, the plaintiff repeated her evidence that she came down the stairs and heard the train coming in, half way down, seeing it stop when she was on the last step. She knew that she had to buy a ticket and she said “I made sure he [the train guard] promised to wait before I bought my ticket”. She thought the guard was about one carriage length away on the train. The plaintiff agreed that she had heard the announcement about the doors closing on her way down the stairway, and said that was why she asked the guard to wait.
9. In cross-examination the plaintiff said the train guard told her, while they were in the train later, that he was worried he would lose his job because of his negligence. He said he had been talking on the phone to his wife, who had just had a baby. He gave her a paper with his name on it.
10. The plaintiff’s version of events as set out in the evidence above differs significantly from the CCTV film, her description of the accident to doctors and the evidence of the witnesses called by the defendant. I shall consider each of these in turn.
The CCTV film
11. The plaintiff was shown the CCTV film of her accident. This video recording is helpfully described in the Assessment report of Dr Johnson (23 May 2008, page 5) as follows:
If this was a recording of the alleged motor vehicle accident [sic] affecting Ms Alam on 30 October 2006 [this being the date the plaintiff originally gave for the accident], then this would contradict her version of the events.”“I noted a number of people waiting for a train on the platform and when the train arrived, these people got on and a number of other people alighted. The train guard could be easily seen hanging out of the train door waiting until everyone had got on or off. A considerable way off, I saw a woman who could have been Ms Alam, but I could not be sure of this, run out from a door and attempted to get onto the train through a door which was still open. She appeared to fall onto the platform and the guard alighted from the train and ran to assist this woman who immediately regained her feet. The woman and the guard walked along the platform towards the guard’s door while in conversation. The guard got into train [sic] and the woman walked through a door in the station and later returned walking rapidly and got into the train. The guard remained waiting at the door until this woman got into the train before the train doors closed and the train left the station.
12. The CCTV shows the following:
(a) the train arrives on the station 3 seconds after the film starts.
(b) the train comes to a stop 15 seconds later.
(c) People alight from the train and get on. The last passenger seen to get on (although not all passengers can be seen) has done so by 30 seconds.
(d) The plaintiff appears very briefly at 32 seconds and immediately turns around to walk back into the station.
(e) The platform is empty by 55 seconds.
(f) The plaintiff reappears on the platform at 60 seconds and is seen entering the train and with the doors shutting on her leg in the following 2 – 3 seconds.
These are the times given when I watched the CCTV on my computer. They vary slightly from the times given by the plaintiff’s counsel in his submissions, probably for technical reasons. Counsel for the plaintiff’s assertion that the CCTV is “valuably marked by the defendant itself as to the time sequence of what happened” is, as the plaintiff points out in paragraph 8, not accurate. However, any differences are comparatively small.
13. The CCTV footage does not show any discussion or eye contact between the plaintiff and the guard, nor does it show her waving to him. He does not appear to be holding a mobile phone or talking on it. She appears very suddenly and without warning, about 30 seconds after the other passengers had all got onto the train, and the train doors must have been about to close because they close on her as she attempts to enter.
14. The plaintiff continued to insist, after being shown the CCTV footage in cross-examination, that her accident occurred the way she described.
15. Both the plaintiff and defendant in submissions pointed to problems in how the CCTV footage should be analysed; these are set out in more detail below. However, on any analysis, the plaintiff’s account and the CCTV are inconsistent and I have set out below the reasons why I reject the plaintiff’s counsel’s submissions that the CCTV is corroborative of the plaintiff’s account of the accident.
Description of injury to medical practitioners
16. The plaintiff told Dr Guirgis, according to his report of 22 February 2008, that the train door had closed on her left shoulder and the train started to move. The plaintiff told Dr Maxwell, according to his report of 5 November 2007, that when she was stepping onto the train the door closed on her foot, the train started and this caused her body to be slightly twisted. She lost her balance and she fell on her back.
17. Her description to the Medical Assessment Service was different yet again:
“On 30 October 2006 Ms Alam was getting onto a train at to [sic] Pendle Hill Railway Station, when the doors of the train closed over her right leg. She fell backwards and her left leg slipped between the train and the platform. The train briefly commenced to move and then stopped when some of the passengers raised the alarm. The driver opened the doors and she fell backwards onto her back. After speaking to the Station Manager, who apologised for the accident, she was sent home by taxi.” (Page 3)
18. Dr Johnson notes (page 4) that this version is at variance with other reports, as well as with the CCTV footage.
19. Up until the plaintiff was shown the CCTV film, the plaintiff had maintained a version of the accident, involving the doors closing on her leg, the train moving off, people screaming to the train driver and the train then stopping. The most significant difference between the plaintiff’s version before seeing the CCTV and afterwards was that she no longer maintained the train moved off but she continued to maintain that there were people screaming when her leg got caught.
20. The defendant, in written submissions (paragraph 21) notes that none of these people can be seen coming forward to help her, but very little turns on this.
Other evidence
The train guard and the ticket seller
21. Mr Clift, the train guard, gave evidence of his recollection of the events in question. He gave a careful and precise account of what occurred.
22. He denied that he was using a mobile phone to telephone anyone and the mobile telephone records tendered for his State Rail Authority mobile phone confirm this.
23. Perhaps more importantly, he informed the Court that he was 48 years old, and that his wife was 47 years of age. Far from being a wife who had recently given birth to a baby, his wife had in fact divorced him in September, the month before the accident, and he had no children from this marriage.
24. Mr Clift’s account of the accident is consistent with the CCTV film. He clearly had no conversation with the plaintiff, and was not waved to by her as she claims. Before commencing to close the train doors he looked to see if it was safe to do so, pressed the button to play the warning to show the doors were about to close, returned to look again, blew a whistle and looked again, in particular to the area which he knew was likely to be the source of late passenger activity, namely the stairs down which the plaintiff had come. During all this time the plaintiff was not in sight.
25. He described the plaintiff as darting out to try to board the train and he saw her fall. This is confirmed by the CCTV footage. He acted promptly by hitting the re-open button, over which his fingers had been hovering because that was the usual practice. He reached her very quickly and helped her to her feet.
26. Mr Clift’s evidence is corroborated by Mr Gregory, who said that the plaintiff hurriedly left the ticket office after receiving her ticket and that he heard the sound which he associated with the doors closing on the train at the time that he was handing the plaintiff her ticket. He saw the doors closing on carriages of the train further along the platform which would confirm that Mr Clift had already hit the door closing button. It is hardly surprising that Mr Gregory was able to recall this event, given that this resulted in an accident on his station involving a passenger to whom he had just sold a ticket.
27. The distance the plaintiff traversed was agreed by the parties to be approximately 3 metres (see defendant’s written submissions, paragraph 26).
The use to which CCTV footage should be put
28. The CCTV footage provides assistance, but the defendant submitted it was of limited evidentiary value.
29. From the CCTV footage, it would appear that the plaintiff got some part of her body onto the train, probably one of her legs, and that this occurred at about the middle of the doorway to the train. The likelihood is that the doors did close on her right leg as the plaintiff said.
30. The plaintiff submits that the CCTV does not support the contention that the plaintiff “darted out”. I do not accept this submission. The plaintiff’s movements are quick. She looks like a person rushing to catch a train. She moves more quickly than the other persons who are shown on the CCTV entering the train carriage.
31. The defendant notes that on the plaintiff’s evidence the train doors had reached the point where she could only insert one leg before the doors closed. This gives an indication of the time lapse between the giving of signals that the doors were to close and the doors closing.
32. A challenge was mounted by the defendant to the admissibility of the CCTV, and I shall now deal with the challenge to the adequacy of the CCTV evidence.
Objection to the tender of the defendant’s CCTV footage
33. Before the trial commenced, the defendant objected to the tender of the CCTV footage, which it had produced in answer to a subpoena. Counsel for the defendant submitted that recent Court of Appeal authority prevented the tender of such material unless its provenance could be established in evidence, and that such evidence, if tendered, could be used as evidence of the truth of events but only as corroboration. (The provenance issue was not pursued after counsel for the plaintiff produced a letter from the defendant concerning this issue.)
34. The two decisions relied upon by the defendant were Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956; [2008] NSWCA 144 and Angel v Hawkesbury City Council [2008] NSWCA 130.
35. In Blacktown City Council v Hocking Spigelman CJ noted:
“ [6] Accordingly, any errors that might have occurred at the time of construction would have arisen with respect to the defects at the two short ends of the pit as they appeared in 2002. For the reasons given by Tobias JA, those defects could not be found to have existed seven or eight years before on the basis of visual inspection of the 2002 photographs, without expert evidence.
[7] Tobias JA sets out the authorities which consider the use of photographs by a trial judge. It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given.
[8] As Young J said in Beaton v McDivitt (1985) 13 NSWLR 134 at 142–143:
… it seems to me that the law is a little unclear as to just what use may be made of photographs tendered at a trial. In a criminal trial, photographs of the victim may be tendered to enable the jury to understand the medical evidence: see, eg, R v Lobendahn (1980) 5 Petty Sessions Review 2484. Even if photographs are tendered in a motor car accident case, it may be that without concession the photographs can only be used by the judge as descriptive of what the witness who tendered them saw, and that the judge cannot himself make deductions from them: see, eg, Schmidt v Schmidt [1969] QWN 3. However, in R v Ames [1964-5] NSWR 1489 at 1491, the Court of Criminal Appeal seems to me to have made a greater use of the photograph than merely to use it to understand the evidence because their Honours said:
… the photographs … did have some probative value, as distinct from an oral description of what they depicted … They depict the direction of the flow of blood on to the clothing and establish the presence of blood on the mouth …
Very often in equity, photographs are tendered from the Bar table without a witness in the box to give complementary oral evidence, and in my view, when this happens, consistently with R v Ames , the judge treats the photographs as evidence and not merely as material to understand the evidence.[9] Schmidt v Schmidt [1969] QWN 3 was an appeal from the Queensland District Court to the Full Court of the Supreme Court of Queensland. Douglas J, with whom Hart and Lucas JJ agreed, made certain obiter observations on the use of photographs for the purpose of making deductions of fact. His Honour said at 6:
[The primary judge] based a large part of his judgment on what he saw in [the photographs]. He was not entitled to use them in the way he did. He proceeded to make deductions of fact which on the evidence it was not competent for him to make. The greater part of his deductions made from the photographs can be described as conjectural, and to the extent that he used them as a basis for his findings they must be rejected.
[10] Douglas J (at 5) cites as authority for his findings Wigmore on Evidence (3rd ed, 1940) Vol 3 at 174–175 which states:… whenever such document is offered as proving a thing to be as therein represented, then it is offered testimonially, and it must be associated with a testifier.
Two consequences plainly follow. On the one hand, the mere picture or map itself cannot be received except as a non-verbal expression of the testimony of some witness competent to speak to the facts represented. On the other hand, it is immaterial whose hand prepared the thing, provided it is presented to the tribunal by a competent witness as a representation of his knowledge.
[11] In the Chadbourn revision of this text — which was published in the year following Schmidt — the author appeared to recognise a broader role for photographs. After setting out the passage from the third edition, quoted above, the learned author added at 219–220:
This theory which has been aptly dubbed the ‘pictorial testimony theory of photographs’ was advanced in prior editions of this work as the only theoretical basis which could justify the receipt of photographs in evidence. With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray … there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which ‘speaks for itself’.
[13] It appears that Schmidt , which relied on the older version of Wigmore’s text, may need reconsideration, as suggested by Young J in Beaton. ”
[12] The author goes on to quote at length an American case in which this issue is discussed. ( People v Bowley 59 Cal 2d 855; 382 P 2d 591 (CA, 1963).) Subsequently see State v Pulphus 465 A 2d 153 (RI, 1983) esp 158, where the Court lists numerous American authorities which “have permitted photographs to be used as substantive evidence as well as merely demonstrative evidence”.
36. Tobias JA at [167] – [172] added:
“ [167] The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: R v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett , Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the “sage advice” of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said:
“Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance.”
[168] In Stillwell Trucks Pty Ltd v McKay & Ors [2002] NSWCA 292, Campbell AJA, with the agreement of Handley and Beazley JJA, also referred (at [71]–[72]) with approval to this passage from Lord Reid’s speech, observing that although his Lordship was concerned with a patent case concerning a hay rake and the issue was anticipation, the passage gave guidance on a wider basis. Campbell AJA then observed (at [73]):In my view the use of other components in the photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification.
[169] It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness’ knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142.[170] Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of “careful delineation” particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.
[172] In my view it required the evidence of an expert to so interpret the relevant photographs. In the absence of any such evidence, it was not open to her Honour to substitute her own view as a lay observer over the evidence of an expert. This being so, the consequence is that there was no evidence capable of supporting her Honour’s finding that the work carried out to the pit at the time the footpath was constructed left the pit without adequate support for its lid.”[171] In my opinion the photographs in the present case obviously depict the condition of the pit at the time they were taken. Whether or not they indicate the presence of a lip at that time may well be a matter of common sense and common observation of the photographs. But her Honour did not merely use the photographs for the purpose of determining the condition of the pit and its lid at the time of the plaintiff’s accident. Such a use would have been perfectly legitimate. Rather, she sought to interpret them as establishing, apart from the collapsed side of the pit adjoining the grass verge, the condition of the lip or the lack of a lip around parts of the perimeter of the lid of the pit at the time the footpath was constructed some seven or eight years previously. She did so without the assistance of any expert evidence except, perhaps, that of Mr Garofali which did not establish the conclusion for which the plaintiff contended and her Honour accepted. This was impermissible.
37. As set out above, in Blacktown City Council v Hocking Tobias JA noted the admissibility of photographic evidence was “beyond doubt”. However, the defendant draws my attention to Tobias JA’s statement in Angel v Hawkesbury City Council at [67] – [72]:
“ [67] The Council sought to rely upon the photographs in evidence to demonstrate that, despite the shadowing, the differential in height at the join between the two slabs was obvious. However, in our view the photographs themselves are deceptive. Those taken at 12 noon on the day of the accident do not actually depict the location of the shadows as they were an hour and a half earlier, in respect of which there was the evidence of the two independent witnesses.
[68] The thrust of the Council’s submissions based on the photographic evidence was that they made plain that the raised slab was visible at least from where the photographs were taken if not from further back. It was contended that at best the light was dappled so that at any given time the shadow cast by the trees did not cover the whole of the raised lip of the defective slab, notwithstanding that it tapered over its width.
[69] Apart from the fact that this submission was at odds with the clear and unchallenged evidence of Ms Wilmington that the shadow was cast by the main trunk of the adjoining tree directly over the whole length of the joint between the two slabs, no proper basis was advanced as to why the photographs should trump the eyewitness evidence of not only Ms Wilmington but also Ms Coull. The fact is that a person walking along a footpath scanning ahead as the appellant said she did, would not suddenly stop at the point at which a photograph was taken and peer to see what was ahead of her. As was pointed by Beazley JA during the course of argument, the perspective depicted in photographs such as those in the present case, can be quite skewed and distances very difficult to assess.
[70] The deceptive nature of such photographs is that they focus on a particular scene that is static. This is the antithesis of a pedestrian walking along a footpath, a situation that is anything but static and where the person is not required to focus on only one small element in the scene before and around him or her. When it comes to the best and most reliable evidence, that of the independent witnesses Ms Coull and Ms Wilmington must clearly prevail over photographs which were not taken until one and a half hours later.
[71] In Short v Barrett [1990] NSWCA 164; unreported (BC9003193), Meagher JA, with the concurrence of Clarke and Handley JJA, considered that judges should not, when looking at photographs, overlook what his Honour referred to as the sage advice of Lord Reid in C Van der Lely NV v Bamfords Ltd (1963) RPC 61 at 71, namely:
“The judge ought not, in my opinion, attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be the most worthy of acceptance.”
[72] The point made by Lord Reid is that photographs such as those relied on by the Council in the present case cannot on their own be used, as the Council seeks to use them, as a substitute for the evidence of witnesses or as a reason for rejecting the virtually unchallenged and consistent evidence of the appellant, Ms Coull and Ms Wilmington. As we have said above, they cannot be used to trump that evidence which compelled acceptance: see generally as to the use of photographic evidence, Blacktown City Council v Hocking per Spigelman CJ at [7] to [13]; and Tobias JA at [167] to [171].”
38. The defendant submitted that the Court of Appeal had failed to arrive at a decisive determination of its position in relation to the principles of law enunciated in Schmidt v Schmidt. However, the Court of Appeal in Blacktown City Council v Hocking considered the trial judge had erred by making considerations of fact about the conditions of a pit without the benefit of expert analysis, where expert evidence was essential to determine whether the pit had adequate support for its lid. The Court in Angel v Hawkesbury City Council did not express any views inconsistent with this. Neither court considered the issue of CCTV footage, which has the advantage of showing two-dimensional motion.
39. The defendant further submits (at paragraph 14, written submissions) that the “more conservative view” as to the use to which photographic material should be put is that of Tobias JA in Hocking at [167]-[172] and in particular at [169]. It is submitted that it is noteworthy that Tobias JA, as well as Spigelman CJ, drew no distinction between the forms of photographic material and cited Beaton v McDivitt, a case which concerned videotape evidence, in support of this proposition of law.
40. The defendant asserts that while a Court is entitled to use CCTV as an aid in explaining oral testimony, it is arguable whether the Court may well be able to use that evidence on its own, to base findings of an independent nature.
41. In my opinion, the defendant is making too much of what is only a passing reference by Tobias JA to a decision in which videotape evidence was used. Videotape and CCTV evidence occupy a special position because of their ability to capture, in an objective and independent way, evidence in a case. In “Disclosure of Evidentiary Video Tapes in Personal Injury Litigation” (2001) 75(6) ALJ 353, Mr Justice P W Young noted:
“It is common in litigation involving personal injury for the defendant to retain a camera person to videotape the plaintiff’s daily activities in an endeavour to establish that the plaintiff is exaggerating his or her symptoms.”
42. His Honour went on to note that in Boyes v Collins (2000) 23 WAR 123; [2000] WASCA 344 the Full Western Australian Supreme Court had ordered the defendant to produce the tape. Although the tape was protected by legal professional privilege, it was classed as “real evidence”, and because the overriding consideration is fairness, the videotape should be discovered so the witness had time to view it before giving evidence.
43. The Court of Appeal has accepted videotape and CCTV evidence in many personal injury proceedings without any suggestion that its accuracy should be viewed with the caution application to photographs. In Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692; [2008] NSWCA 204 the Court of Appeal viewed and commented upon the CCTV of a shooting incident without the benefit of expert (or indeed any) interpretation. In Balasubramanian v Sara [1997] NSWCA 39 Mason P viewed the surveillance video and discussed his observations. CCTV and surveillance videos are routinely tendered in criminal proceedings.
44. The objection to provenance in these proceedings was abandoned, and there has been no attack on the accuracy of the footage. Not only was the CCTV footage shot by the defendant, but the defendant asked the plaintiff to admit the provenance of the tape so that it would not be necessary to call persons involved in the CCTV footage preparation (Exhibit A). Despite this, the defendant challenged the lack of proof of provenance (a challenge later withdrawn) and asked the court to mark for identification the original of the footage in question and asserted the viewable copy was not the same. The footage, when provided to the plaintiff, had not been provided in a form that could be watched. Unfortunately, I am in the same position concerning this original footage and could not comment on any distortions in the original version even if they had been pointed out to me.
45. In conclusion, such is the impact of CCTV and videotape evidence that it has resulted in the court making special provisions in the interest of fairness, including its production even when protected by privilege (Boyes v Collins). Where a party relied on surveillance tape at a hearing which had not been produced at an arbitration, that party was penalised as to costs: Morgan v Johnson (1998) 44 NSWLR 578. Production without prior warning may result in adjournment of the hearing (BHP Pty Co Ltd v Mason and Anor (Supreme Court of South Australia, Debelle J, 7 November 1996, unreported)).
46. The rationale behind all of these decisions is, to quote the Full Supreme Court of Western Australia, the question of fairness. CCTV or surveillance video is strongly persuasive evidence, much more so than a photograph which may require expert interpretation, or may not adequately or fairly portray its subject.
47. The circumstances in which courts should accept a challenge by a party to its own CCTV footage would have to be exceptional. I accordingly admitted it into evidence as Exhibit C.
48. The availability of CCTV footage is an increasing feature of modern litigation. Courts need to be flexible in order to deal with modern technology, rather than to adopt pedantic or old-fashioned suspicions of modern inventions such as CCTV. In particular, any attempt for there to be a challenge of a generic nature to CCTV footage simply because it is CCTV footage, as opposed to some specifically identified flaw in the footage, is not only contrary to common sense, but also to the spirit of s 56 Civil Procedure Act 2005 (NSW).
Conclusions concerning the circumstances of the plaintiff’s accident
49. The plaintiff submits the train guard’s procedure is:
(a) the train stops;
(b) the guard opens to doors;
(c) the guard announces the next railway station;
(d) the guard keeps a proper lookout for passengers getting off and on;
(e) the guard announces the doors are closing, which the plaintiff asserts is a message that can only be heard within the train (although the open doors would, as the defendant pointed out and as the plaintiff conceded in her evidence, mean that persons like the plaintiff could and did hear it);
(f) the guard looks for passengers getting off and on;
(g) the guard blows his whistle loudly;
(h) the guard looks again;
(i) the guard pushes the door close button;
(j) the guard must again push the door closed button within 8 seconds, or he has to start the procedure again; and
(k) he must continuously keep his fingers on the door open button in case of an unexpected arrival or departure of a passenger.
50. I accept that the accident occurred the way Mr Clift and the CCTV footage demonstrated that it occurred. He had followed all these steps, including sounding the warning and blowing the whistle. The plaintiff knew, when she was coming down the stairs, that the train was already at the station and she had to both buy her ticket and arrive at the train doors before the train doors closed. The time that a train stands at a railway station platform is very short. The plaintiff knew that the warnings of the doors closing had already been sounded well before she attempted to get on the train. As one of the plaintiff’s legs was between the train and the platform and the other appears to have been trapped in the door, causing her to fall, she must have been attempting to enter the carriage when the doors were in fact closing.
51. The description by the plaintiff of the circumstances of the accident is different to the version given to the medical practitioners she saw. The plaintiff’s counsel submits that the plaintiff is a woman who is unsophisticated, has never given evidence in court before and who has lived a substantial part of her life in a foreign culture. I accept that these are all factors which should be taken into account when considering the plaintiff’s evidence.
52. However, I do not accept the plaintiff’s criticism of doctors as persons who are not professional statement takers. It is an important part of taking a medical history that the circumstances of the accident should be correctly taken down. In addition, several of the plaintiff’s doctors came from a similar kind of background to the plaintiff, and would be able to take into account, when taking down her history, relevant cultural and emotional factors.
53. The inconsistencies in accounts to doctors are, however, of minor importance. The plaintiff’s description of having alerted the train guard to her wish to board, and their subsequent conversation in which he allegedly apologised for his negligence, are events which never occurred. The plaintiff’s written submissions do not refer to this evidence at all.
54. I find that the accident occurred because the plaintiff attempted to board a train well after the guard had sounded the warning that the doors were about to close. The sole cause of the accident was that the plaintiff attempted to board the train when it was unsafe to do so. She knew the train was about to leave the station and that the doors were about to close. She had had no conversation with, and gave no warning to, the guard as alleged, and given the gross discrepancies between the plaintiff’s account of her conversations with Mr Clift and Mr Clift’s actual family situation, I discount entirely her assertions of having notified him that she was about to board the train.
55. The plaintiff’s submissions assert (paragraph 1) that boarding and alighting a train are “one of the most dangerous acts that a person does in our society.” This is a submission that has been made about other means of ingress and egress, notably stairs (NSW Department of Housing v Hume [2007] NSWCA 69 at [93]). The law on this issue was recently, and exhaustively, analysed by the Court of Appeal in Transfield Services (Australia) v Hall [2008] NSWCA 294 at [58] – [107]. I gratefully borrow the careful analysis of the concept of “inherently dangerous” as set out in these judgments. The fact that mistakes in what the plaintiff calls “the departure process” (which I assume means attempting to board a train which is about to depart) can lead to serious injury or fatality is not sufficient, of itself, to place some non-delegable or higher duty on a defendant in circumstances where a passenger chooses to ignore warning noises and whistles and attempt to board a train which is about to depart.
56. Accordingly, I find that there is no negligence and there will be a verdict for the defendant.
57. In the even that I have erred in finding for the defendant, I will set out my findings in relation to the issue of contributory negligence and quantum.
Contributory negligence and quantum
Contributory negligence
58. The defendant submits (written submissions, paragraph 38) that the contributory negligence of the plaintiff is such that a holding of sole responsibility pursuant to s 5S Civil Liability Act 2002 (NSW) would not be inappropriate.
59. The plaintiff submits that contributory negligence should be assessed at only 10% as “the plaintiff can cause very little damage to the train.” However, this is a subjective approach and the correct approach to take is an objective one: Joslyn v Berryman (2003) 214 CLR 552 at [16]. A plaintiff who hears the train warning of the doors about to close before she has even bought her ticket, and attempts to board after the warning whistle, is acting at great risk to herself on any objective view of the facts.
60. I do not accept the submission of the defendant that the conduct of the plaintiff is not such that she should be deprived of all damages. However, the plaintiff’s submission of a finding of 10% contributory negligence fails to have regard to the objective foolishness of the plaintiff’s conduct.
61. The plaintiff refers to Talbot-Butt v Holloway (1990) 12 MVR 70 as a comparable case on contributory negligence. The facts in that case were very different. The plaintiff, who was found by the court to have deliberately courted danger, ran in front of a car while inebriated. However, as the Court of Appeal explained in Mackenzie v Nominal Defendant [2005] NSWCA 180 at [104] ff, when discussing and distinguishing this case, inebriation may often not be grounds for reducing liability for contributory negligence; it will depend on the facts in the case. In the present case, the plaintiff was sober but extremely foolish, in that she did something at the last minute without warning.
62. A more appropriate proportion, having regard to the circumstances of the accident, would be 70%. This was not a case where the plaintiff had no option other than to catch this train. She could just have easily have waited for the next train to come along.
Damages
63. The plaintiff, in the Statement of Claim particularises the following injuries:
“1. Partial articular surface tear of supraspinatus.
2. Post traumatic rotator cuff arthropathy to left shoulder with impingement.
3. Post traumatic mechanical derangement of the cervical spine.
4. Further post traumatic mechanical derangement of the lumbar spine.”
64. The plaintiff complains of the following disabilities:
“1. Pain, discomfort and restriction of movement of left shoulder and arm.
2. Pain, discomfort and restriction of movement of neck.
3. Pain, discomfort and restriction of movement of the lower back.
4. Pain to right lower limb.
5. Pain to left lower limb.
6. Restriction in ability to bend, lift or carry.
7. Restriction in ability to lift the left arm above head height.
8. Sleep disturbance.”
65. However, the Plaintiff has a complex medical history. In addition to health problems unrelated to accidents, such as carpal tunnel, she has suffered from the following accidents:
(a) In 1982 she had a fall while on a train. She recovered $10,000 compensation.
(b) The plaintiff fell and injured her lower back in about 1984 (MAS Report). The defendant accepts that this is probably the same accident as the 1982 accident and I have proceeded on this basis.
(c) The plaintiff told Dr Guirgis she had a fall in a shopping centre in 1987 (see Dr Guirgis’ report in Exhibit F).
(d) The plaintiff told Dr Ciardi she fell down stairs in a train station on about 16 September 1998 (Plaza MC).
(e) The plaintiff tells her GP she fell at the Canterbury bus stop in July 2000 and hurt her right knee (Plaza MC).
(f) In May 2001 she told Dr Ciardi she fell in the train at Bankstown and had left shoulder pain (Plaza MC).
(g) The plaintiff had an accident in the bathroom of Granville Railway Station in May (or August) 2006 (MAS).
(h) The plaintiff had the accident the subject of these proceedings on 27 October 2006.
66. The plaintiff in examination in chief referred to the incidents in (a), (d), (g) and (h).
67. The defendant raises the following issues in relation to damages:
(a) The lack of contemporaneous complaint concerning the accident. This is in part because the reports of the plaintiff’s doctor were given to the plaintiff when he retired and she told the Court they were at her home. Although there was an opportunity for her to bring them to Court the next day, she did not do so. Accordingly, there is no documentation available to confirm precisely what was said to the plaintiff’s treating doctor.
(b) Inadequacy concerning contemporaneous records – those contemporaneous reports that do exist, namely Exhibit 3, the Complaint Report to the defendant concerning the accident, refers only to her right hip and lower leg.
(c) There is a long and significant medical history, including problems with the same areas of the plaintiff’s body and the plaintiff was in fact on a disability pension in relation to these and other problems.
(d) An assertion that the plaintiff, in describing her injuries and disabilities was exaggerating.
68. As the obligation lies on the defendant to unravel the skein of causation, I shall deal with these issues in some detail.
No reports from Dr Chan
69. The plaintiff, in her evidence in chief, said she saw Dr Chan the day after the accident. Exhibit D shows that the plaintiff in fact visited him the following Monday. However, as Dr Chan’s medical records are not in evidence, their contents are unknown.
70. The plaintiff did tell Dr Lawson that when she saw Dr Chan in relation to the accident he referred her for X-rays and ultrasound of her left shoulder. (It should be noted that the plaintiff’s apparent injury was to her right hip and leg, according to the contemporaneous report she made). Dr Chan did in fact refer her but not until December 2006 (Exhibit F – Dr Robertson) so this cannot have been as a result of any information provided to Dr Chan when she saw him the Monday following the accident.
71. A further problem is that Dr Chan was treating the plaintiff at this time for the fall in the bathroom on Granville Railway Station, which occurred in or about either May or August 2006 (the latter date is the most probable, as it is the date that the plaintiff gave to Dr Guirgis – see his report of 5 March 2007). This caused an injury to the plaintiff’s right hand, and is not the subject of any claim in these proceedings, but it also caused a lumbosacral injury.
72. The reason for the plaintiff having treatment and investigation of her left shoulder problem in December 2006 cannot be corroborated by regard to Dr Chan’s medical records because they are not available. Dr Chan’s medical records would have shed light on whether this was some fresh injury, a continuation of the injury that the plaintiff had from earlier treatment, such as the Granville fall, or as a result of the accident the plaintiff had at Pendle Hill Railway Station which is the subject of these proceedings.
73. Further, both Dr Maxwell and Dr Johnson comment on the difficulty of diagnosis of this condition on ultrasound. The defendant, in written submissions (paragraph 54) draws my attention to this, to the variation in the plaintiff’s complaints as to the causation of the pain (either by way of referral from the neck or by reason of direct injury) and that the complaint of injury to the left shoulder was raised well after the accident.
74. The defendant asks me to draw a Jones v Dunkel (1959) 101 CLR 298 inference arising from the failure to produce the records of Dr Chan.
75. The inference for which Jones v Dunkel stands is generally applied to the failure of a party to call a witness. In White v White [2004] NSWSC 208, Macready M (as his Honour then was) considered that a failure to comply with obligations to disclose financial information in de facto property settlement application could be a matter in which it was appropriate to apply Jones v Dunkel to draw inferences against the party who had failed to provide the appropriate information. This decision is referred to in Hayes v Marquis [2008] NSWCA 10 at paragraph 130 but was distinguished on the facts of the case.
76. Non–production of documents in a party’s possession is often dealt with in accordance with the principles of Allen v Tobias (1958) 98 CLR 367 at 375. While this relates to the destruction of a document, the highly unusual circumstances of a plaintiff who has medical records in her own possession and does not produce them, despite her solicitors being aware that these documents have been subpoenaed by the defendant, must come very close to a situation falling within the parameters of the principles of Allen v Tobias.
77. If that is the case, then the presumption to draw would not be the inference for which Jones v Dunkel stands, but the stronger presumption in Allen v Tobias, namely that “the strongest possible presumption arises that if it had been produced it would have told against him” because the person who fails to produce the document is “in the position that he is without the corroboration which might have been expected in his case”.
78. The principles in Allen v Tobias were considered by the Court of Appeal in Dem Compagnie Pty Ltd v Telxon Australia [2004] NSWCA 66 at paragraphs [24]ff. The circumstances in that case were that the relevant document was not produced and since its non-production was not explained, the inference was that it had been deliberately destroyed (at [25]). Although a witness who could have given evidence about this document was not called, and his absence attracted the principles in Jones v Dunkel (at [25]), in other words, the Court of Appeal differentiated between a witness who was not called and a document, which was not produced.
79. In Clark v New South Wales [2006] NSWSC 673 at [76]ff, Johnson J gives an exhaustive analysis of the circumstances in which unfavourable inferences will be drawn where destruction of potential evidence has occurred or can be inferred. His Honour noted the need for there to be an element of conscious repression or withholding before such an inference could be drawn (Bridges v Pelley [2001] NSWCA 31 at [52]) and that the fabrication “or suppression” of evidence (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [40]) could give rise to the inference not only to any specific fact in the cause but to operate, indefinitely though strongly, against the whole mass of alleged facts constituting the relevant parties’ cause of action.
80. It is most unusual for a doctor to provide his notes to a patient as opposed to another doctor. It appears that this occurred because Dr Chan was retiring. The evidence of the plaintiff’s treating doctor was most important in this case, not less because Dr Chan, who had retired, was not in any position to give a report concerning the plaintiff’s condition or the treatment he prescribed.
81. Accordingly, I consider it is appropriate that I draw the inference in Allen v Tobias in relation to the non-production of the medical records of Dr Chan which the plaintiff said were given to her and were in her home.
The causation problem
82. The plaintiff, both in her evidence to the Court in chief and in her description of her medical history to medical practitioners, was unwilling to admit to the existence of a long past history of health problems. Not only did she seek to minimise the impact of her prior back complaints, but she asserted that she was awarded a disability pension by reason of her carpal tunnel problem. This is incorrect. The plaintiff’s bilateral carpal tunnel syndrome was diagnosed in May 2000 but by this stage she had been on a disability pension for some years.
83. The plaintiff’s medical problems were compounded by her refusal to accept medical advice for treatment. Two of these are of relevance. The plaintiff suffered back pain from abdominal and pelvic adhesions and chronic pelvic inflammatory disease. It was recommended that the plaintiff have surgery for this condition, which she refused (Exhibit 1, Tab 6). The defendant submits that part of her back pain is that she continues to have these problems. In addition, after the plaintiff was diagnosed with bilateral carpal tunnel syndrome, she was advised that her condition was sufficiently severe for surgery to be recommended. Again, the plaintiff refused to have this surgery. The problems caused by the carpal tunnel involved the forearms to the level on both sides, weakness of the right hand and pain sufficient to wake the plaintiff from sleep, a common side effect from carpal tunnel. The plaintiff was suffering pain in the neck and shoulder at about this time, which would have compounded other medical problems.
84. Further, in May 2001 the plaintiff’s medical problems were added to when she suffered either tendonitis or tendonosis and an intrasubstance tear in her left shoulder muscles. The plaintiff was still suffering from pain six months later (Exhibit 1, Tab 7). The notes from Dr Ciardi’s practice are very incomplete and it is difficult to know how long this condition went on for.
85. In addition, the plaintiff’s significant lower back problems were such that it was recommended that she should be reviewed by an orthopaedic surgeon, according to a treating doctor’s report of 8 May 2003 (Exhibit 1, Tab 13). There is no information as to whether or not this occurred, but it would appear likely that the plaintiff did not have this review.
86. I am satisfied that the defendant has established that prior to the accident, the plaintiff’s state of health was significantly a problem for her and also that she was receiving assistance in her home in relation to her carpal tunnel problems. Accordingly to Dr Ciardi’s report of 17 November 1998, the plaintiff at this time, in addition to her pelvic problems, had an arthritic lumbar spine, a bulging L4/5 disc (which prevented her from working even 8 hours a week) and lower back problems manifesting in pain radiating into the legs.
87. However, the fact that the plaintiff had pre-existing problems would not, if she suffered a genuine injury, which aggravated them, prevent her from claiming in relation to the impact of the accident upon her injuries.
88. I now turn to a consideration of whether or not the plaintiff has exaggerated the injuries that she suffered from her fall at the railway station.
The plaintiff’s credit as a witness
89. The plaintiff has the following problems with credibility:
(a) Her account of the accident is unreliable and inconsistent with both the CCTV footage and the objective facts concerning her claims about her conversation with Mr Clift about his use of the mobile phone to call his wife about a new baby.
(b) The plaintiff has given inconsistent accounts of the accident to doctors and to the Court. The inconsistency in her accounts to the doctors is comparatively minor, but the whole of her evidence about waving to and having conversations with the train guard before she got on the train (including his alleged apology after the accident, his use of the mobile phone and the story that his wife had just had a baby) is a fiction.
(d) The plaintiff made some clearly wrong and, I find, untruthful statements to the Court, such as her claim that her disability pension related to her carpal tunnel syndrome. The plaintiff must have been aware that she was already on a disability pension for several years prior her carpal tunnel diagnosis.(c) The plaintiff has failed to produce treating doctors’ records, including the records of her first visit to him following the accident, and the inferences to be drawn from such failure can be applied, as Levine J noted in Marsden , not only to the facts in question but to other issues in the case.
90. The plaintiff’s evidence on a number of issues was (as the plaintiff’s counsel concedes in his submissions) dramatic and colourful, such as her description of screaming passengers rushing to stop the train, and this included her description of her problems doing housework in the home. While I take into account the plaintiff’s lack of experience with courts and her cultural background, this does not wholly absolve the plaintiff from her obligation to give a careful and accurate account of her injury and subsequent disabilities.
91. In addition, the two persons who are asserted to have provided her with assistance since the accident, namely her sister and next-door neighbour, were not available to give evidence to the Court. While I draw no inference from their failure to give evidence, as their absence was explained by reason of health problems, the fact remains that the plaintiff is deprived of the availability of corroborative evidence in circumstances where her credit is such that I would be reluctant to accept her evidence without corroboration.
92. The plaintiff did call her brother to give evidence. However, it would appear that this assistance with the housework was of a comparatively minor nature and he himself suffers from ill health. His evidence was of little assistance. In particular, the times given for performance of some household tasks, and the number of times they were performed during the week, were such as to point to either an inordinate degree of fastidiousness, which is unreasonable, or to exaggeration by both the plaintiff and her brother.
93. I accept the defendant’s submission that the plaintiff has exaggerated her pain and injury resulting from the fall at the railway station and also that she has attributed pre-existing pain to the accident. As the defendant’s medical expert has set out in the report, the likelihood is that the plaintiff suffered a soft tissue injury which has resolved in a matter of weeks and accordingly, any injury she suffered as a result of her fall at the railway station was of short duration and she has now recovered.
94. Having considered these disputed issues in relation to quantum, I now turn to the specifics of the damages claim.
95. Damages recoverable by the plaintiff are regulated by Chapter 5, Motor Accidents Compensation Act 1999 (NSW) and s 121 Transport Administration Act 1988 (NSW).
96. The plaintiff has been assessed by the MAS Assessor and has been found not to exceed 10% permanent impairment. Thus non-economic loss is not recoverable.
Past and future out of pocket expenses
97. Past and future out-of-pocket expenses have been particularised. The difficulty is that the plaintiff has claimed for a large number of medical attendances on Dr Chan, Dr Guirgis and others in circumstances where it is not clear that these relate to the injuries. However, these past expenses have been agreed in quantum only at $4,516.50 so I do not need to determine this issue further. If the plaintiff is successful, she should be awarded this sum.
98. The plaintiff claims a modest sum for future out-of-pockets, namely the cost of four visits to the doctor and analgesia at the rate of $7 per week, for 20 years (666.4 at 5%) which is $7,597.
99. As to future medical expenses, I am satisfied the plaintiff has entirely recovered and she is not entitled to any future medical expenses. I accept the defendant’s submissions in this regard.
100. The past domestic assistance claim is only particularised in the most general fashion. Not only was the plaintiff’s description of what she did very general, but the description given by her brother in his evidence was of little assistance. The comments in the medical reports by doctors such as Dr Maxwell and Dr Johnson suffer from the handicap that the plaintiff did not give them a full report as to the extent of her pre-existing health problems and it is difficult to determine exactly what additional assistance the plaintiff required following the accident as opposed to before the accident.
Past and future domestic assistance
101. On 12 November 2008 the Civil Liability Legislation Amendment Act 2008 (NSW) commenced operation: Government Gazette No. 145, 12 November 2008. This legislation is retrospective in relation to undecided claims (see Schedule 1) and designed to close the loophole exposed in s 15 Civil Liability Act 2002 exposed in Harrison v Melhem [2008] NSWCA 67. Like amendments are made to the Motor Accidents Act 1988 (NSW) and to the Motor Accidents Compensation Act 1999 by Schedule 2 of the Civil Liability Legislation Amendment Act.
102. I am not satisfied, in relation to past domestic assistance, that the plaintiff is able to overcome any of the thresholds in s 128(3) Motor Accidents Compensation Act.
103. As to future domestic assistance, since I accept the contention of the defendant that the plaintiff has entirely recovered from any injury she suffered from her fall, I consider she is not entitled to any future domestic assistance. I note the submissions of the defendant in paragraph 67 of the written submissions, that the threshold under s 128(3) Motor Accidents Compensation Act cannot be met but as I am satisfied the plaintiff has no need for future domestic assistance by reason of any injury she suffered in her fall, I do not need to determine this issue.
104. Accordingly, the only head of damage for which the plaintiff could recover is the agreed sum for past out-of-pocket expenses referred to above.
Case management issues
105. This matter was listed before me as a one day plus hearing. It only finished in two days because two of the plaintiff’s witnesses were unavailable and the defendant elected not to call a witness when it became apparent that would take the case into a third day. The matter had to be adjourned so that written submissions could be provided and when there was non-compliance by the plaintiff a further date had to be set. An additional complicating factor was that the plaintiff did not provide a chronology; I am indebted to counsel for the defendant for giving me a copy of his own chronology.
106. While case length may vary according to a number of factors, including the approach taken by the judge hearing the case, any case where there are three or four witnesses for both parties, issues of liability and causation and legal argument about issues such as the admissibility of CCTV is unlikely to be disposed of in a one day plus hearing.
107. The practical result was that not only was the case adjourned twice but the adjourned matter had to be relisted outside usual court hours both times, and it was not possible for an ex tempore judgment to be handed down. In a case where there is no transcript and delay resulting the possibility of error in a reserve judgment is greater.
108. Counsel in this matter did their best to finish the case in two days, and I am grateful for their assistance to me, which was necessary to provide “just, cheap and quick” resolution of litigation in accordance with s 56 Civil Procedure Act in this very busy Court.
Orders
(1) Judgment for the defendant.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to apply, such liberty to be exercised within three months of the date of judgment.
(4) Exhibits retained for 28 days.
27/11/2008 - Typographical error - Paragraph(s) 28 27/11/2008 - Formatting error - Paragraph(s) 28-29
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