Alexander v Manley
[2004] WASCA 140
•30 JUNE 2004
ALEXANDER -v- MANLEY [2004] WASCA 140
| (2004) 29 WAR 194 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 140 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:80/2003 | 21 APRIL 2004 | |
| Coram: | STEYTLER J EM HEENAN J LE MIERE J | 30/06/04 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Judgment entered for appellant Damages to be apportioned for contributory negligence | ||
| A | |||
| PDF Version |
| Parties: | IAIN STEWART ALEXANDER WAYNE EDWARD MANLEY |
Catchwords: | Appeal Personal injury Negligence Duty of care Contributory negligence Apportionment of damages Rules of evidence Cross-examination The Evidence Act, s 22 Whether a party requiring crossexamining counsel to tender a document must make the request during crossexamination Application to be made promptly |
Legislation: | Evidence Act, s 22 |
Case References: | Gregory v Tavernor (1833) 6 Car & P 280; 172 ER 1241 Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VR 181. , Holland v Reeves (1835) 7 Car & P 36; 173 ER 16 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McGregor v The Queen [1984] 1 Qd R 256. , Palmer v Maclear & M'Grath (1858) 1 Sw & Tr 149; 164 ER 670 R v Anderson (1929) 21 CrAppR 178 R v Foggo; Ex parte Attorney-General [1989] 2 Qd R 49 R v Trotter (1982) 7 A Crim R 8. , R v Weatherstone (1968) 12 FLR 14 Senat v Senat [1965] P 172. , Stroud v Stroud [1963] 1 WLR 1080 Teubner v Humble (1963) 108 CLR 491 Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 Walker v Walker (1937) 57 CLR 630. , Wharam v Routledge (1805) 5 Esp 235; 170 ER 797 Wood v Desmond (1958) 78 WN (NSW) 65 Bayntun v Carlson [2000] WASCA 179; (2000) 31 MVR 331 Chappel v Hart (1998) 195 CLR 232 Cook v Cook (1986) 162 CLR 376 J Boag & Son Brewing Ltd v Bridon Investments Pty Ltd [2001] TASSC 16 Mazinski v Bakka (1979) 20 SASR 350 McLean v Tedman (1984) 155 CLR 306 Morrison-Knudsen Co Inc et al v British Columbia Hydro & Power Authority (1973) 31 DLR (3d) 633 Pennington v Norris (1956) 96 CLR 10 Queen's Case, Re (The Queen's case) (1820) 2 Brod & Bing 284; (1820) 129 ER 976 R v Harrison [1966] VR 72 Wallace Harold Virgo (1978) 67 Cr App R 323 Van Den Heuvel v Tucker [2003] SASC 110 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ALEXANDER -v- MANLEY [2004] WASCA 140 CORAM : STEYTLER J
- EM HEENAN J
LE MIERE J
- Appellant
AND
WAYNE EDWARD MANLEY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'SULLIVAN DCJ
Citation Number : [2003] WADC 109
File Number : CIV 17 of 2001
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Catchwords:
Appeal - Personal injury - Negligence - Duty of care - Contributory negligence - Apportionment of damages
Rules of evidence - Cross-examination - The Evidence Act, s 22 - Whether a party requiring crossexamining counsel to tender a document must make the request during crossexamination - Application to be made promptly
Legislation:
Evidence Act, s 22
Result:
Appeal allowed
Judgment entered for appellant
Damages to be apportioned for contributory negligence
Category: A
Representation:
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr E J Myers
Solicitors:
Appellant : Bradley & Bayly
Respondent : Edward John Myers
Case(s) referred to in judgment(s):
Gregory v Tavernor (1833) 6 Car & P 280; 172 ER 1241
Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VR 181
Holland v Reeves (1835) 7 Car & P 36; 173 ER 16
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McGregor v The Queen [1984] 1 Qd R 256
Palmer v Maclear & M'Grath (1858) 1 Sw & Tr 149; 164 ER 670
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R v Anderson (1929) 21 CrAppR 178
R v Foggo; Ex parte Attorney-General [1989] 2 Qd R 49
R v Trotter (1982) 7 A Crim R 8
R v Weatherstone (1968) 12 FLR 14
Senat v Senat [1965] P 172
Stroud v Stroud [1963] 1 WLR 1080
Teubner v Humble (1963) 108 CLR 491
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647
Walker v Walker (1937) 57 CLR 630
Wharam v Routledge (1805) 5 Esp 235; 170 ER 797
Wood v Desmond (1958) 78 WN (NSW) 65
Case(s) also cited:
Bayntun v Carlson [2000] WASCA 179; (2000) 31 MVR 331
Chappel v Hart (1998) 195 CLR 232
Cook v Cook (1986) 162 CLR 376
J Boag & Son Brewing Ltd v Bridon Investments Pty Ltd [2001] TASSC 16
Mazinski v Bakka (1979) 20 SASR 350
McLean v Tedman (1984) 155 CLR 306
Morrison-Knudsen Co Inc et al v British Columbia Hydro & Power Authority (1973) 31 DLR (3d) 633
Pennington v Norris (1956) 96 CLR 10
Queen's Case, Re (The Queen's case) (1820) 2 Brod & Bing 284; (1820) 129 ER 976
R v Harrison [1966] VR 72
Wallace Harold Virgo (1978) 67 Cr App R 323
Van Den Heuvel v Tucker [2003] SASC 110
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1 STEYTLER J: I have had the advantage of reading the judgment of Le Miere J. I agree with it and with his conclusions that the appeal should be allowed, that the judgment of the District Court should be set aside and that, in lieu, there should be a judgment entered in favour of the appellant, requiring the respondent to pay 30 per cent of the appellant's damages for personal injuries to be assessed. I would hear further from the parties as to the costs both here and below.
2 I wish only to add a few, brief, comments on the issue whether a party who requires cross-examining counsel to tender a document, which has been used to refresh a witness' memory and which has been the subject of cross-examination on parts of the document not so used, must do so during cross-examination. As has been mentioned by Le Miere J, that is the rule in Victoria (see Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VR 181 at 183 and R v Trotter (1982) 7 A Crim R 8 at 19 and see also, in the Federal Court, Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 680, per Franki J).
3 In Hatziparadissis, Harris J, in concluding that that was the rule, relied upon extracts which he quoted from the first Australian edition of Cross on Evidence, from the 11th edition of Phipson on Evidence and from the decision of Sir Jocelyn Simon P in Senat v Senat [1965] P 172. He also referred to Halsbury's Laws of England, 4th ed, vol 17, par 276.
4 The extract (at page 271) from the edition of Cross on Evidence which was relied upon by Harris J (at 182) reads as follows:
"It also seems that a document may become evidence of the facts stated in it by virtue of the common law rules concerning cross-examination on documents. If, at the trial, a party calls for and inspects a document held by his adversary, he is bound to put it in evidence if required to do so, provided the document was not being used to refresh the memory of one of the adversary's witnesses. If the document was being used for this purpose, neither the inspection, nor cross-examination on such parts of the document as were used to refresh memory, makes it evidence in the case, though cross-examination on other parts will have this effect."
5 The relevant passage of Phipson (11th ed) relied upon by Harris J, reads as follows (par 1532):
"The rule relating to documents used by a witness to refresh his memory must be distinguished from the more general rule that
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- where a party calls for and inspects a document held by the other party he is bound to put it in evidence if so required (Wareham v Routledge (1865) 5 Esp 235; Calvert v Flower (1836) 7 C & P 386; Palmer v Maclear & M'Grath (1858) 1 Sw & Tr 149; Stroud v Stroud (1963) 3 All ER 539 (Wrangham J)). The position was conveniently summarised by Sir Jocelyn Simon P in Senat v Senat (1965) P 172, 177. 'In my view the mere inspection of a document does not render it evidence which counsel inspecting it is bound to put in. I think that the true rules are as follows: where a document is used to refresh a witness's memory, cross-examining counsel may inspect that document in order to check it, without making it evidence. Moreover he may cross-examine upon it without making it evidence provided that his cross-examination does not go further than the parts which are used for refreshing the memory of the witness: Gregory v Tavernor (1836) 6 C & P 280. But if a party calls for and inspects a document held by the other party, he is bound to put it in evidence if he is required to do so: Wareham v Routledge (1805) 5 Esp 235. The distinction is shown clearly in the ruling of Sir Creswell Creswell … in Palmer v Maclear & M'Grath (1858) Sw & Tr 149'. In that case, a witness, during examination-in-chief, held in his hand notes which he had made from his day-book to refresh his memory, together with certain letters which had reference to the subject of inquiry. Counsel who cross-examined asked for the documents and the judge observed 'You may look at the notes made by the witness to refresh his memory; but you cannot look at the letters without putting them in evidence, if required by the plaintiff.' (Per Sir C Creswell at p 151)."
6 The passage in Halsbury's Laws of England, 4th ed, relied upon by Harris J (being par 276 of vol 17 of that edition), does not relevantly add to anything said in either of Phipson or Cross.
7 As Harris J recognised (at 183), none of the passages to which he referred expressly said that the right to require tender of the document must, in the circumstances referred to, be exercised during the course of the cross-examination. However, his Honour considered it to be implicit in those passages that the right is one which must be exercised then. I would respectfully disagree. The texts upon which his Honour relied, and the case of Senat, do no more than state the general rule that, in circumstances of the kind to which I have referred, the cross-examiner can be required to tender the document. As I read those authorities, there is
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- nothing in them which should be taken to suggest that the cross-examiner can only be required to do so during the course of cross-examination.
8 Indeed, as has been pointed out by McPherson J in McGregor v The Queen [1984] 1 Qd R 256 at 265, the ruling in Hatziparadissis may not be entirely consistent with the course adopted by Alderson B in Holland v Reeves (1835) 7 Car & P 36; 173 ER 16 at 18. There the Solicitor-General cross-examined a witness in respect of a letter, and when called upon to "have it read now", so that opposing counsel might re-examine the witness upon the document, he took up the position that he was not bound to do so until after he had addressed the jury. Alderson B said:
"I cannot compel the Solicitor-General to put in a letter which is a part of his evidence till after he has addressed the jury."
9 The current (15th) edition of Phipson still refers (par 11-53) to the need to distinguish the rule relating to documents used by a witness to refresh his memory from the old rule that where a party called for and inspected a document held by the other party, he was bound to put it in evidence if so required and refers to what was said by Sir Jocelyn Simon P in Senat. However, there is, once again, nothing there said, as I read that text, to support the proposition that the requirement that the cross-examining counsel tender the document must be made during cross-examination.
10 The current (6th) Australian edition of Cross on Evidence, after referring (par [17240]) to the rule that, where a document is used to refresh a witness's memory, but the witness is cross-examined about other parts of the document than those used for that purpose, the party calling the witness may, in the absence of an exercise of the discretion not to compel tender, have the whole document treated as evidence in the case, mentions that that right has been held in Victoria to be only available during cross-examination, but adds that it is not clear that it is the law elsewhere and notes that there is authority in Queensland against its correctness in the form of R v Foggo; Ex parte Attorney-General [1989] 2 Qd R 49 at 51 (CCA).
11 It consequently seems to me, with great respect, that Harris J erred in his conclusion (page 184) that the authorities and texts to which he referred precluded him from allowing the rule to be invoked after cross-examination had been completed. However, it appears that
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- his Honour was also motivated by practical considerations. He said (ibid):
"There is a further point which, in my opinion, supports that conclusion … . If the rule is invoked at that point of time, the situation is that the witness is still under cross-examination. Although the cross-examiner has been forced to put the document in, it does not mean that he is thereafter debarred from asking further questions about it. He is then in a position to continue to cross-examine about it with a view to explaining the additional parts in it, or reducing the impact of them, or dealing with them in some way which he considers to be appropriate."
"Whilst not questioning its correctness on its own facts, it should not be taken as enunciating a hard and fast principle of time limits. In my view, the court's power to allow into evidence documents upon which a cross-examiner has cross-examined is an instance of the control of the court in the reception of evidence. That power is at large and exists to ensure that justice is done. I do not recognise any time limit upon the right to permit a document to be received if a cross-examiner has made it admissible and it is receivable under the ordinary rules.
Obviously, fairness will frequently require that the application be made promptly, but that, I think, is the main aspect of the judicial discretion to reject a document that the cross-examiner has made relevant."
13 I am consequently not prepared to regard Hatziparadissis as expressing the law in this State. Like Le Miere J, I regard what was said in Foggo as being a preferable statement of the law.
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14 EM HEENAN J: I have the advantage of having read in draft the reasons for decision of Steytler J and of Le Miere J. I agree with their Honours' conclusions that this appeal should be allowed; that the judgment of the District Court of Western Australia of 22 May 2003 should be set aside and that, in lieu, judgment should be entered for the appellant for damages to be assessed but reduced by a factor of 70 per cent by apportionment due to contributory negligence. I would remit the action to the District Court of Western Australia for the assessment of damages on that basis.
15 In reaching that conclusion I do so on the basis that, like Steytler and Le Miere JJ, I consider that the respondent has successfully made out the point, asserted in his notice of contention, that the respondent's written statement to the police, made shortly after the accident and containing hearsay evidence of statements attributed to the witness Turner, who was not available to be called at the trial, should have been put into evidence on behalf of the respondent, after the statement was the subject of cross-examination by counsel for the appellant. However, had that been done, and the contents of that statement been considered as part of the evidence at the trial I do not consider that it merited any substantial probative effect. Nevertheless, it should be regarded as part of the evidence in the case and, as such, it is part of the evidence which this Court has examined before reaching the decision that this appeal should be allowed and that the appellant is entitled to a judgment for damages to be assessed to be reduced by 70 per cent on apportionment for contributory negligence.
16 The reasons why little probative effect should be given to that statement are that Turner, himself, was not called as a witness and there was, therefore, no verification or corroboration by him of statements which he made shortly after the accident in a condition when he, himself, was adversely affected by the consumption of alcoholic drink and when he was, understandably, greatly disturbed and affected by the substantial injuries which had just been suffered by his friend the appellant. Furthermore, the statement suggests that the appellant had been stretched out on the roadway before he was seen, or could have been seen, by the respondent when driving the approaching vehicle. However, this is consistent with the conclusion of Le Miere J, with which I respectfully agree, that notwithstanding this and the distraction caused to the respondent by seeing Turner standing on the road verge, the exercise of reasonable care by the maintenance of a proper look out by the respondent, should have resulted in him seeing the appellant before he did and thereby avoiding the accident.
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17 On this basis, therefore, I agree that the evidence at trial established that the respondent was negligent and that, therefore, the appeal should be allowed. Judgment should be entered for the appellant for damages to be assessed subject to apportionment. I also agree, with respect, for the reasons given by Le Miere J, that the evidence also revealed a substantial degree of contributory negligence by the appellant and, in the circumstances, his damages should be reduced by a factor of 70 per cent on apportionment because of that.
Obligation for counsel to tender document upon which witness was cross-examined - time when tender may be demanded
18 As the point raised by the respondent's notice of contention, dealing with the submission by counsel for the respondent, that counsel for the appellant should have been required to tender a written statement of the appellant, containing hearsay statements attributed to the witness Turner, involves important points of evidence and to procedure I desire to set out my own reasons for joining in the decision to uphold the respondent's submissions on this issue. Not only are these important conclusions applying to the cross-examination of witnesses upon documents generally but, so far as counsel were able to assist us, these points do not appear to have been addressed by this Court before.
19 The circumstances of how the respondent's statement to the police came to be used at the trial are set out in the reasons for decision of Le Miere J. It is enough to say that the respondent's statement was not referred to in any way during the course of his examination-in-chief and it was not suggested that the statement had been used by the respondent, either before giving evidence or in the course of giving his evidence, to refresh his memory of the events leading to or immediately following the accident. Equally, it is clear that counsel for the appellant showed a photocopy of the original statement to the respondent in the course of his cross-examination and, having done so, cross-examined the witness in relation to part of the contents of the statement while, at the same time saying that other parts of the statement were inadmissible and would not be the subject of cross-examination. After the cross-examination had been completed, and after re-examination, counsel for the respondent sought a ruling from the learned trial Judge that the appellant's counsel was bound to tender the whole of the statement because of his cross-examination upon parts of it. However, the learned trial Judge rejected this submission on the basis that the demand for the compulsory tender of the statement, which had been the subject of cross examination, had been made too late and that only a demand made during the course of
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- cross-examination would give rise to an obligation on the part of counsel for the appellant to tender the statement. In this regard his Honour relied upon and applied the decision of the Supreme Court of Victoria in Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VR 181.
20 Several points may be thought to arise from this course of events at the trial. Was there an obligation enforceable against the appellant, for his counsel to tender the statement because he had "called" for a copy of it and a copy had been produced by the respondent's counsel? Was this a cross-examination upon a document which, going beyond any use which it might have had to refresh memory, rendered the whole of the document admissible at the demand of counsel for the respondent? If the document should have been tendered as a result of the cross-examination upon its contents, and in the light of the submission by counsel for the respondent, was the whole of the document admissible including the hearsay content attributed to the witness Turner who did not give evidence at the trial and who was not a party?
21 As Steytler J has shown, the practice in Victoria of insisting that a document which has been rendered admissible because of an opponent's cross-examination upon it, will only be admissible if the demand in that respect is made during the course of the cross-examination, is established by the decision in Hatziparadissis v GFC (Manufacturing) Pty Ltd (supra) and has been approved by the Victorian Court of Criminal Appeal in R v Trotter (1982) 7 A Crim R 8 at 19. However, that is evidently not the established practice in New South Wales - see per McHugh QC (as he then was) in "Cross Examination on Documents" (1985) Vol 1 Aust Bar Rev 51 at 60 and 67 - and D K Malcolm QC (as he then was) "Cross-Examination on Documents" (1986) 2 Aust Bar Rev 267 at 276. However, it is recognised that practices may develop in particular jurisdictions allowing such a document to be tendered during the re-examination of the witness (see Hatziparadissis at 183) and that the trial Judge may have a discretion to permit the calling party to tender the document at a later stage – McGregor v The Queen [1984] 1 Qd R 256 (Ct of Cr App) per McPherson J at 265. In view of these differences in approach in other Australian jurisdictions and because this decision may become authoritative on these points in this State it is necessary to examine the principles which apply in these situations.
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Was the respondent's statement admissible because the appellant had made it the subject of a "call"?
22 The decision in Walker v Walker (1937) 57 CLR 630 establishes that if a party calls for an opponent to produce a document, or if counsel calls upon a witness in the course of cross-examination to produce a document which the witness has before him, other than for the purposes of refreshing memory, then the party calling for that document can be compelled, at the insistence of his opponent, to tender the document so produced. In that case the whole contents of the document, including parts otherwise inadmissible, will become admissible for all purposes and may be given such weight as the tribunal of fact considers appropriate.
23 The rule has a long history and a wide application. In certain jurisdictions it has been abolished by the application of s 35 of the Evidence Act (1995) (Cth) but, otherwise, it remains the law in this State. Other examples of its application can be found in Wharam v Routledge (1805) 5 Esp 235; 170 ER 797; Gregory v Tavernor (1833) 6 Car & P 280; 172 ER 1241; Palmer v Maclear & M'Grath (1858) 1 Sw & Tr 149; 164 ER 670; Stroud v Stroud [1963] 1 WLR 1080 and Senat v Senat [1965] P 172.
24 However, there are limits to the rule. One is that if the document, in possession of a witness, was used for the purpose of refreshing the witness' memory, then cross-examining counsel can call for the document and inspect it, in order to check it without thereby creating an obligation for it to be tendered if the opponent so demands. Further, such counsel who has called for and inspected the document may cross-examine the witness on those parts of the document which had been used to refresh the witnesses memory in order to challenge the credibility or reliability of the witness' testimony which has been refreshed and, in that case cannot be compelled to tender the document or any part of it. The cross-examination in that instance goes only to the credibility of the witness' memory as refreshed and does not make any part of the document itself admissible. On the other hand, if cross-examination of the document so produced and inspected goes beyond areas used by the witness for the purpose of refreshing memory, or is used in any way by counsel beyond challenging the reliability of the refreshed memory, then the cross-examining counsel may be compelled to tender the whole document the contents of which, in those circumstances, will be admissible for all purposes - Senat v Senat (supra).
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25 Furthermore, the rule appears to apply only to a "call" formally made in the course of the trial or upon the service of a Notice to Produce during the course of the trial in relation to a document which the party making the call is otherwise not entitled to see. So, a document used by an opponent's witness to refresh the memory, as already noted, may be called for and inspected without bringing the rule into operation. Similarly, an inspection of a witness' deposition to the Crown may occur without the person calling for its production having to tender it in evidence because such a deposition is not a document of that party even though it may be in the prosecutor's custody - R v Weatherstone (1968) 12 FLR 14 (ACT SC). Accordingly, if the party desiring to inspect the document can secure its production, otherwise than by making a "call" or serving a "notice to produce" during the course of the trial, for example by issuing a subpoena requiring the production of the document, or by exercising a right of inspection to documents produced on discovery, that will not invoke the rule. In some jurisdictions this has given rise to a practice by counsel calling for a document "as on a subpoena" thus avoiding the operation of the rule.
26 In the present case the respondent's statement to the police made shortly after the accident was the document in question. Presumably the original of the document was the property of the police and how it had come into the possession of the respondent's counsel at trial is not revealed by the proceedings in the District Court. It is, therefore, open to question whether or not it was the respondent's document. Similarly, there does not appear to have been any formal "call" for the document by counsel for the appellant. What happened was that counsel for the appellant desired to put a photocopy of the statement into the witness' hands intending only to use it for a limited cross-examination (a practice which would not have avoided compulsory tender if demanded by the opponent) but, in the process, it was noticed that there was some other identified writing on the document whereupon cross-examining counsel accepted a clean copy of the document produced by the respondent's counsel and used that to put before the witness.
27 This sequence of events does not, in my view, constitute a "call" which gives rise to the operation of the rule in Walker v Walker (supra) and there was no obligation on this account for the cross-examining counsel to tender the document. Significantly, however, the demand by counsel for the respondent that the document be tendered was not made, as I read the transcript, on this basis but, rather, because the witness had been cross-examined as to some of the facts contained in the statement which, as has clearly emerged, was the witness' own document. In my
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- view it was this cross-examination upon the facts contained in part of the witness' statement which rendered the whole statement (including hearsay portions) admissible in evidence for all purposes if a timely demand for such a tender was made by counsel for the respondent.
28 The demand which was made by counsel for the respondent for the tender of the document upon which the witness was cross-examined was not made during the course of the cross-examination but only towards the end of the re-examination of the witness by counsel for the respondent. It was for this reason, and this reason alone, that the submission by counsel for the respondent requiring counsel for the appellant to tender the document was rejected by the learned trial Judge applying Hatziparadissis v GFC (Manufacturing) Pty Ltd (supra).
29 As already noted, the practice of insisting that the compulsory tender by a party who has rendered a document admissible by cross-examining a witness in respect of it or by making a call for the document in the course of the trial, can only be enforced during the course of the cross-examination, is not always followed in States other than Victoria. The contrary New South Wales practice has already been noted and the position in Queensland is that an application requiring the tender of the document may be made later – McGregor v The Queen (supra) and R v Foggo; Ex parte Attorney-General (supra). In the latter case Thomas J, with whom Andrews CJ and de Jersey J agreed, said of the decision in Hatziparadissis:
"It seems to me that there is no such limitation, and I share the reservation which Mr Justice McPherson obviously felt in R v McGregor [1984] 1 Qd R 256, 265 in relation to that decision. Whilst not questioning its correctness on its own facts, it should not be taken as enunciating a hard and fast principle of time limits. In my view, the court's power to allow into evidence documents upon which a cross-examiner has cross-examined is an instance of the control of the court in the reception of evidence. That power is at large and exists to ensure that justice is done. I do not recognise any time limit upon the right to permit a document to be received if a cross-examiner has made it admissible and it is receivable under the ordinary rules."
30 In his decision in Hatziparadissis (supra) Harris J made reference to passages in Senat v Senat (supra), Gregory v Tavernor (supra), Wharam v Routledge (supra) and to Halsbury's Laws of England, 4th ed, vol 17, par 276 as authorities which had recognised the rule. Those authorities do
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- confirm the existence of the rule and the obligation for the tender of the document arising in the circumstances described but they do not appear to deal with the issue of when the demand for tender must be made in order to be effective. Reference to the rule in the current edition of Phipson, "Evidence", 15th ed, Sweet & Maxwell (2000) at pars 1125 and 1153 suggests that it is doubtful whether the court would enforce the rule in the present day. In this State we need not be concerned with whether the rule should be enforced, for the authorities are all to the effect that it may be enforced subject, in certain circumstances, to a discretion by the trial Judge to decline to insist upon tender - Wood v Desmond (1958) 78 WN (NSW) 65 (FC) - the point now before us is when the demand for tender must be made if the rule is to be enforceable.
31The rationale for insisting that the demand must be made during the course of the cross-examination as adopted in Hatziparadissis was that, despite the forced tender, the cross-examining counsel may need to proceed with further cross-examination to elucidate the significance of the document or part of its contents or to elicit other facts which would tend to refute or dilute the significance of its contents. Doubtless, cross-examining counsel should have this opportunity if it is needed and that is a factor which would generally render it desirable to require the demand for tender to be made during the course of the cross examination. But, in my opinion, it is not fatal if the demand is made later, either during or immediately after re-examination of the particular witness or even in the course of still later evidence. Doing so at such a later time may require an opportunity to be given to the party, whose actions have caused the forced tender, to have an opportunity to recall the witness who was being cross-examined when the reference to the document occurred but whether or not this is the case, and if so how and when effect should be given to the interests of the party seeking further cross-examination, will be matters for consideration by the trial Judge having regard to the particular features of the case in hand. Perhaps I should add that, in the experience of the members of this Court it has frequently been the case in this State where documents, rendered admissible by this process, have been tendered and accepted into evidence after the close of the cross-examination of the witness concerned.
32 Accordingly, I consider that the learned trial Judge was incorrect to reject the submission of counsel for the respondent, that his opponent at trial should be required to tender the respondent's statement to the police at the time when that submission was made, namely after the completion of the cross-examination of the respondent. It follows that I consider that that document should have been admitted into evidence but, for reasons
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- which I have previously touched upon, and which are developed more fully by Le Miere J, I consider that this additional evidence, taken together with all the other evidence of the trial, could only result in a finding of negligence against the respondent but subject to a substantial reduction on apportionment as already outlined.
33 For these reasons I agree that the appeal should be allowed, that the judgment of the District Court of Western Australia dismissing the appellant's claim for damages with costs should be set aside, and that in lieu thereof judgment should be entered for the appellant for damages to be assessed but reduced by 70 per cent apportionment for contributory negligence. I consider that counsel should be permitted to make further submissions in regard to the costs of the action in the District Court before this Court determines what orders should be made in respect of those costs when disposing of this appeal.
34 LE MIERE J: This is an appeal from a decision of a Judge of the District Court whereby his Honour dismissed the appellant's claim for damages for personal injury.
35 At about 4.15 am on 7 October 2000 the appellant was on Middleton Road, Albany, near the intersection with Vine Street, when he was struck and run over by a flat top tow truck which was being driven by the respondent, in a north-easterly direction along Middleton Road. The appellant sustained severe injuries.
36 The plaintiff was born on 27 February 1971. At the time of the accident he was aged 29 years. The appellant had been employed as a forestry officer with the Department of Conservation for about 6 years. Subsequent to that he worked as a crayfishing deckhand. In between crayfishing seasons he worked as a builders labourer. At the time of the accident he was working as a builders labourer for a local builder.
Evidence
37The appellant gave evidence that he had no recollection of the accident. On the evening of Friday 6 October 2000 he went to a friend's place at about 8 pm and stayed there until about midnight. During that time he had about six stubbies of Emu Bitter. At midnight he left his car at his friend's place and took a taxi to a nightclub situated near the intersection of Middleton Road and York Street, Albany. He arrived there shortly after midnight and remained until about 4 am. During that time he consumed about six more stubbies of Emu Bitter. While at the nightclub he met Cameron Turner. Mr Turner was about the same age as the
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- appellant. He was working for a local plumber and rented a room from the appellant at the appellant's house.
38 At about 4 am the appellant and Mr Turner decided to walk home. The house in which they were living was about 20 minutes' walk from the nightclub. They left the nightclub and proceeded down Middleton Beach Road. The appellant gave evidence that he could remember leaving the nightclub and walking off, but after that he could not remember anything else until waking up in hospital some weeks later.
39 Mr Turner was not called as a witness. The appellant gave evidence that Mr Turner was from the Eastern States and he believed that Mr Turner had returned to the Eastern States.
40 The respondent gave evidence that he had been called out to attend a vehicle which had broken down. He had been unable to locate the vehicle and was returning home. He was driving a flat-top tow truck along Middleton Beach Road towards Middleton Beach at about 55 to 60 kilometres per hour as he approached with Vine Street. He then said:
"I was driving along Middleton Beach Road and there was a male standing on the side of the road which I spotted, so I was keeping my eye on the male because he was moving around a fair but like he had been drinking. I was veering. The man didn't do any movements, nothing. He just stared at me through the windscreen of the vehicle, looking at me, didn't wave his hands or nothing like that. So I started to veer because I thought he was going to walk out. I started to veer to the centre of the road. Then I looked back on the road. I was braking this time – not at this time. I seen something laying on the road. I went to brake. I thought I shouldn't brake, so I lifted my foot off the thing and then I felt that I ran over something.
41 The respondent said that after he had stopped he ran back to the place of impact and saw a male laying face down with his head facing towards the town.
42 The appellant called evidence from Dr Chew, a mechanical engineer. Dr Chew gave evidence of his observations of the scene made when he visited it on 11 June 2002 and of tests which he carried out in and to the tow truck which the respondent had been driving. Dr Chew's evidence was to the effect that a dark object resembling a body was visible to a driver of the tow truck driven by the respondent at the time of the accident from between 90 and 116 metres from the position on the road where the
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- appellant was found depending on whether the streetlights and headlights of the truck were operating. The learned trial Judge did not exclude the evidence of Dr Chew but appeared to give it little weight because Dr Chew made his observations and measurements on an occasion other than the night of the accident and in circumstances which were different. The observations were made at a different time and under different weather conditions. Dr Chew was not driving the truck himself. Dr Chew knew of the existence of the object on the road and was looking out for it.
Findings of Trial Judge
43 The learned trial Judge concluded:
"In my view, as the [respondent] drove his vehicle along Middleton Road towards the scene of the accident his attention would naturally have been drawn to the figure of Cameron Turner standing on the side of the road near the junction with Vine Street. There is no evidence to justify the conclusion that at that time the defendant was not keeping a proper lookout. While it seems that the lighting at the scene was adequate, whether or not the streetlight near the Gull Service Station was burning, the plaintiff was wearing dark clothing and his presence on the road could hardly have been expected nor easily perceived in the conditions which prevailed. There is no evidence of excessive speed on the part of the defendant nor of any failure by him to handle his vehicle in a reasonable manner. In all the circumstances I am not satisfied that the defendant was negligent in the respects pleaded or at all."
44 The learned trial Judge made no express finding as to when the appellant moved onto the road. Counsel for the appellant at trial submitted that the respondent must have seen the appellant lying on the road as he approached the junction of Middleton Road and Vine Street, that the respondent had a clear view of the road for up to 200 metres before the scene of the accident, that the lighting at the scene was good and that there was no reason why the respondent should not have been able to avoid driving over the appellant. His Honour rejected that submission on the basis that it wrongly assumed that the appellant was lying on the road as the respondent approached the junction. His Honour said that there was no evidence as to when the appellant came to be on the road and thus there was no basis for concluding that the respondent should have seen him earlier than he did.
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45 There was no evidence as to when the appellant came to be on the road. However, the respondent gave evidence that when he first observed him, the appellant was lying face down on the roadway just past the Vine Street intersection in the respondent's carriageway and in line with the direction of the road with his head pointing towards the respondent's vehicle as it approached. The appellant was closer to the centre line of the road than to the left-hand verge.
46 The appellant had been walking home with Mr Turner. It is probable that the appellant was a short distance from Mr Turner when the respondent first spotted Mr Turner. It is difficult to imagine that the appellant could have moved from the road verge onto the road and fallen or laid down in the position where he was first seen by the respondent without the respondent having seen him. The inference should be drawn that the appellant was on the roadway when the respondent approached the intersection with Vine Street. His Honour erred in fact in not making that finding.
47 The learned trial Judge observed that Mr Turner may have been able to give valuable evidence. His Honour said that:
"His absence as a witness, it seems to me, has not been well explained. In those circumstances the discharged by the [appellant] of the onus which he bears is made harder."
48 It is difficult to know what his Honour meant by that observation. The absence of Mr Turner as a witness could not place any greater or different onus on the appellant to make out his case. Nor could the absence of Mr Turner as a witness permit an inference that his evidence would in fact have been damaging to the appellant. Mr Turner was an eyewitness. It was open to either party to call him as a witness. Neither party did. That may be explained by Mr Turner having returned to the Eastern States. Whatever the reason for his absence as a witness it did not permit the drawing of any inference adverse to the appellant.
Grounds of Appeal
49 The essence of the appellant's argument is as follows. The respondent was driving his truck at 55 to 60 kilometres per hour. He saw Mr Turner standing on the verge of the road. The respondent was distracted by Mr Turner. The respondent kept his eyes on Mr Turner for perhaps two or three seconds. He did not slow down. He veered towards the centre of the road. That is, the respondent continued at the same speed and altered his path on the road whilst taking his eyes off the road for
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- some two to three seconds. The appellant says that the respondent thereby failed to discharge his duty of care to any driver or pedestrian who may have been on the road.
50 It is clear that the respondent owed a duty of care to all users of the road. That duty of care was not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers or pedestrians and those whose faculties were impaired either naturally or by reason of the effect of alcohol: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 per Deane J at 520. Thus, for example, an inattentive driver of a slowly travelling car has been held to be liable for breach of a duty of care to a pedestrian who, dressed in a dark overcoat on a rainy night, sought to cross the light at a "highly unlikely" spot without any real lookout for oncoming traffic: see Teubner v Humble (1963) 108 CLR 491.
51 One can readily accept, as his Honour did, that as the respondent drove his vehicle along Middleton Road towards the scene of the accident his attention would naturally have been drawn to the figure of Cameron Turner standing on the side of the road near the junction with Vine Street. However, that does not extinguish the respondent's duty of care to all users of the road, including the inattentive and those whose faculties were impaired by alcohol. In my view the appeal must succeed. The respondent continued at the same speed and changed the direction of his vehicle whilst taking his eyes off the road for some two to three seconds. He thereby breached the duty of care he owed to any other motorist or pedestrian who might happen to be on the road, however unexpectedly.
Contributory Negligence
52 The respondent pleaded that the collision was contributed to by the negligence of the appellant. The particulars of the appellant's negligence including lying on the roadway at night, failing to keep any or any proper lookout, failing to give or properly give any warning of his presence on the roadway and failing to exercise proper care for his own safety with respect to the danger of collision from vehicles travelling along Middleton Beach Road.
53 The appellant was lying on the roadway when the respondent approached the intersection with Vine Street. On the balance of probabilities it is to be inferred that he was in that position because his faculties were impaired by alcohol and he had failed to take reasonable care for his safety. There is no evidence that the appellant suffered from any medical condition which might have caused him to suddenly fall
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- down on the roadway. The route from the nightclub to the appellant's house would not have caused him to cross Middleton Road. Whatever the explanation for the appellant being on the road, and the sequence of events immediately preceding his presence on the road, on the balance of probabilities they were attributable to his faculties having been impaired by alcohol. The appellant's evidence was that he had consumed 12 stubbies of Emu Bitter over a period of eight hours.
54 The appellant failed to meet the standard of care to which he is required to conform for his own protection. The appellant's failure to take reasonable care for his own safety was obviously a cause of the accident. He placed himself on the roadway in circumstances where it is to be inferred his faculties were impaired by alcohol. His presence on the roadway was obviously a cause of the accident.
55 Apportionment of damages requires the damages recoverable by the appellant to be reduced to such extent that the Court thinks just in accordance with the degree of negligence attributable to the plaintiff. A comparison of the degree of fault between the appellant and the respondent requires an examination of the whole conduct of each in relation to the circumstances of the accident.
56 The conduct of the appellant in putting himself on the roadway in the circumstances in which he did brought about a hazardous situation. The negligence of the respondent consisted of inattentiveness when he was distracted by the presence of Mr Turner on the road verge. The responsibility of the appellant for the accident, and his departure from the standard of care of a reasonable person, was much greater than that of the respondent. I would apportion responsiblity for the accident as to 70 per cent to the appellant and 30 per cent to the respondent.
Notice of Contention
57 The respondent filed a notice of contention that the learned trial Judge should have allowed an application of counsel for the respondent that his Honour admit into evidence a written statement made by the respondent to the police, after counsel for the appellant referred the respondent to that statement and cross-examined the respondent on that statement which provided an explanation as to how the appellant came to be lying on the road.
58 In the course of cross-examination of the respondent the following exchange occurred:
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- "You also made a statement to the police?---Yes.
Have you got a copy of that statement with you?---No.
Perhaps you could have a look at a photocopy of this.
MYERS (counsel for respondent): Is the whole statement going in?
SINGLETON (counsel for appellant): No.
MYERS: Your Honour, if the statement goes to him, the whole statement should go to him, in my respectful submission.
JUDGE: Sorry? What are you saying? I think Mr Singleton is proposing to show him the statement now. Is that the position?
MYERS: Yes.
JUDGE: So where are we going, Mr Myers? Mr Singleton is entitled to show him what he says is the statement.
MYERS: He has just told me he is not going to show him the whole statement.
JUDGE: I see.
SINGLETON: I am showing him the whole statement, yes. I will show him the whole statement but I only intend to question him on the one part because there are parts there that I say are inadmissible, as I outlined earlier.
JUDGE: I see. You're entitled to show him the whole statement. What happens then – we'll just wait to see what happens then.
SINGLETON: Yes.
It's a photocopy, Mr Manley?---Yes.
59 Counsel for the appellant then cross-examined the respondent on aspects of his statement to the police. Counsel cross-examined on a statement in the respondent's statement to the police that the streetlights were on at the time. The respondent had said in his evidence that one of the streetlights was out.
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60 After the completion of cross-examination and re-examination of the respondent, counsel for the respondent submitted that the defendant's statement to the police should go into evidence because the appellant had called for it. The learned trial Judge ruled that it was too late for the respondent to require the statement to go into evidence. His Honour said:
"You can only require a party who cross-examines on a document to tender the document at the time of the cross-examination and before re-examination commences."
61 The matter was revisited the following day. Counsel for the respondent stated that he called upon the appellant to tender the document. The learned trial Judge confirmed his ruling of the previous day.
62 It was submitted on behalf of the appellant that at trial the appellant had not called for the document. However, in substance, the appellant did call for the document. The appellant's counsel asked the respondent if he had a copy of the statement. On the respondent saying that he did not, counsel asked the respondent to look at a photocopy. Counsel for the respondent said that the whole statement should go to the respondent. Counsel for the appellant said that he was showing the respondent the whole statement. The learned trial Judge ruled that counsel for the appellant was entitled to show the respondent the whole statement. Counsel for the appellant then asked the respondent to identify the photocopy statement.
63 Section 22 of the Evidence Act provides that a witness may be cross-examined as to a previous written statement made by him without the writing being shown to him. But if it is intended to contradict him by such writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him. Furthermore, to take advantage of s 22, the document, that is the original document not a copy, must be in court or at least capable of being readily produced: see MH McHugh QC, "Cross-examination on Documents", (1985) 1 Aust Bar Rev 51 at 53, citing R v Anderson (1929) 21 CrAppR 178. Thus counsel for the appellant was not entitled to cross-examine the respondent in the manner in which he did unless the original statement was in court or at least capable of being readily produced. In effect, the parties treated the statement as having been called for and produced so that a photocopy could be used in place of the original.
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64 There is conflicting authority as to whether a party requiring cross-examining counsel to tender a document must make the demand during cross-examination. It has been held in Victoria that if opposing counsel requires the cross-examiner to tender the document he must make his request during the cross-examination: Hatziparadissis v GFC (Manufacturing) Pty Ltd, (supra) at 183. The rationale requiring the document to be tendered during cross-examination is set out by Harris J at 184:
"There is the further point which in my opinion supports that conclusion and it is one which was relied upon by Mr Meltrum. If the rule is invoked at that point of time, the situation is that the witness is still under cross-examination. Although the cross-examiner has been forced to put the document in, it does not mean that he is thereafter debarred from asking further questions about it. He is then in a position to continue to cross-examine about it with a view to explaining the additional parts in it, or reducing the impact of them or dealing with them in some way which he considers to be appropriate. True enough, if the document were allowed in at a later stage the witness could be recalled, but I consider that if I allowed that course to be adopted, I would be going beyond the contents of the Rule as is to be found in the authorities in the textbooks so far."
65 A different approach has been taken in Queensland. In R v Foggo; Ex parte Attorney-General [1989] 2 QdR 49, the Queensland Court of Criminal Appeal held that it is not the law that where counsel for one party cross-examines on the content of a document, an application requiring that he tender the document must be made during the course of cross-examination. The Court of Criminal Appeal held that the Court's power to allowe the document into evidence is at large and not subject to any time-limit within which the the application requiring the document to be tendered must be made. Fairness will frequently require that the application be made promptly, but that is the main aspect of the judicial discretion to reject a document that a cross-examiner has made relevant.
66 Mr M H McHugh QC (as his Honour then was) at page 60 of the article referred to, pointed out that the decision in Hatziparadissis is contrary to the practice in New South Wales which would permit the request to be made at any subsequent time in the case, including during the cross-examination.
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67 In my view, the rule laid down in Hatziparaddisis should not be followed. It is contrary to the practice in New South Wales and, so far as I am aware, the practice in this jurisdiction. The rationale for requiring the tender to be made during cross-examination is that it enables the cross-examiner to ask questions about other aspects of the document. It is based upon notions of fairness but does not require a hard and fast rule. In my view, the following statement of Thomas J, with whom Andrews CJ and de Jersey J agreed in R v Foggo, is a preferable statement of the law:
"In my view, the Court's power to allow into evidence documents upon which a cross-examiner has cross-examined is an instance of the control of the Court in the reception of evidence. That power is at large and exists to ensure that justice is done. I do not recognise any time-limit upon the right to permit a document to be received if a cross-examiner has made it admissible and it is receivable under the ordinary Rules.
Obviously, then fairness will frequently require that the application be made promptly, but that, I think, is the main aspect of the judicial discretion to reject the document that the cross-examiner has made relevant."
68 The learned trial Judge rejected the tender of the respondent's statement to the police not on the basis of an exercise of discretion but because, as a matter of law, it was too late for the respondent to require the document to be tendered. His Honour thereby erred in law. His Honour failed to exercise his discretion whether to admit the statement.
69 The respondent had concluded his evidence but he was available to be recalled and further questioned by counsel for the appellant, if counsel was so minded. His Honour should not have rejected the tender of the document.
70 If the document was accepted into evidence it was for the trial Judge to give such weight to it as he might think proper. Its probative weight must be dealt with as a matter of fact: see Walker v Walker (1937) 57 CLR 630 at 636 per Dixon J.
71 The respondent relied upon extracts from the respondent's statement to the police in which he referred to conversations with Mr Turner. The respondent relies upon the following extract in which he spoke to Turner at the scene of the accident:
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- "I said: I can't fucking believe it. You cunts are fucked. Why couldn't you get a taxi home or something.
I then started swearing at this bloke, I cannot quite remember what I said.
He said: It's not your fault. Don't stress out."
72 The respondent also relies upon the following extract of an exchange between the respondent and Turner at the hospital:
"He said: 'Don't worry mate, we will sort it out, it will be okay.
The bloke whispered it to me as to not let the police hear what he said.'
He said: 'He is a crazy motherfucker, he is into death and pain and shit.'
He said: 'Don't worry about it, it will be okay.'
…
He said: 'Come over.'
He was standing near the gazebo outside the hospital doors.
He said: 'That bloke you hit just walked out onto the road and laid down in front of the truck.'
He said: 'He is a crazy motherfucker. He is into pain and death shit.'"
73 In my view, those statements have little if any probative value. They are hearsay. They are attributed to Turner at a time when he would appear to be both intoxicated and shocked by the accident. The respondent gave evidence that when he first spotted Turner "he was moving around a fair bit like he had been drinking." After the accident but before the police arrived Turner "said something but it didn't really make sense at the time". In his statement to the police the respondent said that at the scene of the accident he heard one of the police officers ask Turner his name at least four times.
74 The statements attributed to Turner in the respondent's police statement would not have affected the outcome of the trial and do not affect the outcome of this appeal. For the reasons I have stated it is to be
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- inferred that the appellant was lying on the roadway when the respondent approached the intersection with Vine Street. The circumstances which caused the appellant to be lying on the roadway do not affect my conclusion that the respondent breached his duty of care to other road users in the manner I have described. I have concluded that the appellant was guilty of contributory negligence. The statements, or opinions, attributed to Turner at most support the inference that the appellant came to be lying on the road for reasons attributable to his faculties being impaired by alcohol. My conclusion that the appellant was guilty of contributory negligence, and the appropriate apportionment, is based on that inference.
Conclusion
75 I would allow the appeal and order:
1. The judgment of the District Court be set aside.
2. In lieu thereof judgment be entered for the appellant.
3. The respondent do pay 30 per cent of the appellant's damages for personal injuries to be assessed.
76 I would hear from the parties as to the costs of the appeal and in the District Court.
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