Brittain v Total Logistics Solutions (Aust) Pty Ltd (Ruling)
[2016] VCC 1156
•11 August 2016
12q
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-02035
| ROD WAYNE BRITTAIN | Plaintiff |
| v | |
| TOTAL LOGISTIC SOLUTIONS (AUST) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3, 4, 5, 8, 9, 10, 11 and 12 August 2016 | |
DATE OF RULING: | 11 August 2016 | |
CASE MAY BE CITED AS: | Brittain v Total Logistics Solutions (Aust) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1156 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Evidence – application by plaintiff to admit into evidence what is said to be “prior consistent statement” of the plaintiff
Legislation Cited: Evidence Act 2008, s108(3)(b)
Cases Cited:Leung v R (2003) 144 A Crim R 441; Pavitt v R (2007) 169 A Crim R 452; R v Whitmore (1999) 109 A Crim R 51; Graham v R (1998) 195 CLR 606; R v DBG (2002) 133 A Crim R 227
Ruling: Application to admit evidence granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms S Bailey | Adviceline Injury Lawyers |
| For the Defendant | Mr T J Casey QC with Mr R Kumar | Wisewould Mahony |
HIS HONOUR:
1 This Ruling concerns an application by the plaintiff pursuant to s108(3)(b) of the Evidence Act 2008 (“the Act”) to admit into evidence what is said to be a “prior consistent statement” of the plaintiff.
The legislation
2 Section 108 of the Act is contained in Part 3.7 of the Act, which deals with “credibility”.
3 Section 101A of the Act states:
“Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that—
(a)is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant—
(i)because it affects the assessment of the credibility of the witness or person; and
(ii)for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.”
4 Section 102 of the Act provides that “credibility evidence about a witness is not admissible”.
5 Thereafter, in Part 3.7 of the Act, are various exceptions to the credibility evidence rule – one of which is s108 of the Act, which reads:
“(1)The credibility rule does not apply to evidence adduced in re-examination of a witness.
(2)…
(3)The credibility rule does not apply to evidence of a prior consistent statement of a witness if—
(a)evidence of a prior inconsistent statement of the witness has been admitted; or
(b)it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion—
and the court gives leave to adduce the evidence of the prior consistent statement.”
6 The Dictionary contained within the Act –
(a)Defines “witness” to include the meaning given in Clause 7 of Part 2 of this Dictionary. Clause 7(1) of Part 2 provides that a reference in the Act to a “witness” includes a reference to a party giving evidence;
(b)Defines “prior consistent statement” of a witness to mean a previous representation that is consistent with evidence given by the witness;
(c)Defines “representation” to include, amongst other things, an expressed or implied representation whether oral or in writing.
7 I refer to the New South Wales Court of Criminal Appeal decision of Leung v Regina,[1] wherein, at paragraph 83, O’Keefe J (with whom Meagher JA and Bell J agreed), delivering the judgment of the Court, states:
“A prior consistent statement to which s108(3) refers is not admitted under that subsection other than on the question of credibility, and its admissibility is not dependent on common law notions of recent invention, fabrication or reconstruction … The prerequisites for admission of a prior consistent statement under s108(3) are as set out in s108(3)(a) and s103(b). ‘The witness’ referred to in s108(3)(a) and s103(b) is the same person as that referred to as ‘a witness’ in the introductory portion of s108(3). Provided that evidence of a prior inconsistent statement of such witness has been admitted, or that evidence given by such witness is, or will be, the subject of a suggestion that it has been fabricated, etc, s108(3) exempts from the operation of the credibility rule of exclusion, evidence of a prior consistent statement, whenever made. Questions of the time when the statement was made, the likelihood of an accurate memory in relation to the statement, the importance of the evidence, whether its admission would be unfair to a party, the surrounding circumstances, and other matters touching on the probative value and reliability of the evidence, will be relevant to the exercise of the discretions conferred by s108, s135 and s192. However, provided that the conditions prescribed in s108(3) are met and the evidence is relevant, then it would be prima facie admissible.”
[1](2003) 144 A Crim R 441
8 It is also to be noted that whereas it has been suggested that “the denial of the events alleged without more does not necessarily suggest, expressly or implicitly, positively, reconstruction, fabrication or suggestion”,[2] a more recent authority asserts that there “is no warrant for reading into the provision a requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived”.[3]
[2]See R v Whitmore (1999) 109 A Crim R 51 at paragraph [39]
[3]See Pavitt v R (2007) 169 A Crim R 452 at paragraph [105]
9 In particular, I refer to the High Court decision of Graham v R,[4] wherein the relevant issue was whether leave should have been given to the prosecution to adduce evidence of the alleged victim’s first “complaint”, which was consistent with her in-court testimony. The majority of the Court (Gaudron, Gummow and Hayne JJ) stated:
“The appellant's denial of the charges and the course of cross-examination of the complainant may well have amounted to a suggestion that the evidence of the complainant had been ‘fabricated’. (It was not suggested in this case that the complainant had reconstructed her evidence or had been affected by suggestion.) But it was by no means inevitable that leave should have been given to adduce evidence of the prior consistent statement of the complainant.
In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the ‘credibility rule’ — the rule that evidence that is relevant only to a witness’ credibility is not admissible. Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness’ credibility: here, the suggestion of fabrication.
How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important … and would do nothing except add to the length of the hearing … .”[5]
[4](1998) 195 CLR 606
[5]Pavitt v R (op cit) at paragraphs [6]-[9]
10 I also refer to the further Court of Criminal Appeal decision of R v DBG,[6] wherein Howie J (with whom Meagher JA and Simpson J agreed), stated, after making reference to the High Court decision of Graham v R:[7]
“As was pointed out in the passage from Graham v The Queen, which I have quoted above, the admissibility of evidence under s108(3) is an exception to the credibility rule. It is admitted for a purpose different from that for which evidence of recent complaint is placed before the jury. It is evidence of a prior consistent statement which is relevant to rebut an attack upon the complainant's general credibility which arises either by the introduction of a statement which is inconsistent with the evidence given in the trial or because of an allegation that the evidence given in court is a fabrication, reconstruction, or the result of suggestion. Because the statement is being admitted to meet that particular attack, the timing of the making of the statement, generally speaking, will be more important than the circumstance in which the statement is made.”[8]
[6](2002) 133 A Crim R 227
[7]Op cit
[8](1998) 195 CLR 606 at paragraph [56]
Background
11 There is no issue that the plaintiff was employed by Total Logistic Solutions (Aust) Pty Ltd (“the defendant”) from 2 April 2008 to approximately 31 October 2008. The plaintiff sues the defendant for pain and suffering damages and pecuniary loss damages, alleging negligence on the part of the defendant, in that it required the plaintiff to drive a particular sort of truck (a 404) on the nights of 26 and 27 May 2008 in circumstances where it knew, or ought to have known, that the driving of that type of truck was unsafe, given the plaintiff’s pre-existing back condition. It is alleged that such negligence has been a cause of an aggravation or worsening of the plaintiff’s pre-existing back condition.
12 As originally pleaded in a Statement of Claim dated 28 April 2015, the plaintiff alleges that from about April 2008, the defendant had been advised by the plaintiff that he had a previous back injury, coped best when driving an Aerodyne Kenworth truck and had difficulties and pain when driving a Kenworth 404 truck. The plaintiff then alleges, at paragraph 6, that:
“On or around 26 May 2008, despite the advice, the Defendant required the plaintiff to drive a Kenworth 404 B-Double truck with truck registration ###-###, which was not an aerodyne truck, from Melbourne to Nhill, and when the truck hit a section of rough, bumpy corrugated road the Plaintiff was jolted in his seat, injuring his lower back causing injury (‘the injury’).”[9]
[9]Joint Court Book (“JCB”) page 8
13 At the commencement of the hearing, the plaintiff was granted leave to rely on an Amended Statement of Claim dated 8 July 2016. In particular, paragraph 6 of the Statement of Claim was amended by deleting the wording of paragraph 6 and substituting it with the following:
“Despite the advice, in the course of his employment with the Defendant from April 2008 to July 2008, and particularly on 26 May 2008 when driving from Melbourne to Nhill, the Plaintiff was required to drive a Kenworth 404 B-Double which:
(a) was not an aerodyne truck;
(b) was unsuitable for the plaintiff’s work;
(c)by reason of the condition of the truck, placed strain on the Plaintiff’s lower back, causing injury (‘the injury’).”[10]
[10]JCB page 16
14 The defendant had, at earlier times amended its Defence by asserting, in paragraph 7 of such Defence:
“Further to paragraph 6 it states that if on or around 26 May 2008 the truck driven by the Plaintiff hit a section of rough, bumpy corrugated road causing the Plaintiff to be jolted in his seat and injuring his lower back (which allegations are not admitted) then that incident was a transport accident as defined in section 3 of the Transport Accident Act 1986 and any right to claim compensation in respect to that incident is governed by the provisions of the Transport Accident Act 1986 (Vic).”[11]
[11]See Amended Defence at JCB page 22, paragraph [7]
15 During the course of his evidence in the trial, the plaintiff gave evidence that when driving the 404 vehicle on 26 May 2008 (and to a lesser extent on 27 May 2008), the whole journey was effectively detrimental to his back, in that not only did he go over undulating road which jolted his back, but, also, the ergonomic layout of the cabin of that truck put greater strain on his back, given the placement of various objects around the cabin.
16 The defendant denies any knowledge of the plaintiff having a pre-existing back injury leading up to the time when he was required to drive the 404 vehicle to Nhill in May 2008.
17 There is no dispute that the plaintiff suffered a significant back injury on 14 February 2002 during the course of his employment with Calleja Transport (“Calleja”) and that such injury ultimately led to back surgery performed by Mr Roy Carey, orthopaedic surgeon, on 7 May 2002. That injury led to a claim for weekly payments and ultimately, the payment of common law damages. Furthermore, there is no issue that the plaintiff suffered a significant neck injury on 26 November 2004, when employed by McColl’s Transport Company, which ultimately resulted in neck surgery by Mr Melham, a neurosurgeon, on 7 November 2005. That injury also led to a claim for weekly payments and ultimately, the payment of common law damages.
18 One of the doctors sought to be relied on by the defendant is the late Mr Kevin King, an orthopaedic surgeon, who seemingly examined the plaintiff on behalf of his solicitors on 28 August 2008 and later, on 12 December 2008. Seemingly, such examinations were in relation to the common law claim against Calleja in relation to the back injury suffered by the plaintiff on 14 February 2002. In both reports, there is no history of any particular injury during the course of his employment with the defendant save that, at the time of the first examination, Mr King obtained a history:
“[The plaintiff] is currently working as an interstate truck driver, but with difficulty, losing time periodically (several days a month) mainly due to flare-ups of lower back and left sciatica pain and to a lesser extent due to flare-ups of neck and left arm pain.”[12]
[12]See report of Mr Kevin King dated 28 August 2008 at JCB 281
19 In his later report, Mr King obtained a history that over the ensuing four months (since the last examination) there had been a “… slow and gradual deterioration in the severity of his low back symptoms …”.[13]
[13]See report of Mr Kevin King dated 12 December 2008 at JCB 286
20 In support of his application under s108(3)(b) of the Act, Senior Counsel for the plaintiff referred to various parts of the cross-examination of the plaintiff by Senior Counsel for the defendant. The references cover the Transcript from pages 361 to 371, which deals with cross-examination as to what the plaintiff effectively was asserting in his first Statement of Claim to what he was now asserting before the Court.
21 Senior Counsel for the plaintiff also referred to the cross-examination by Senior Counsel for the defendant, at pages 371 to 375 of the Transcript. Such cross-examination involved that, whereas now the plaintiff was alleging that he suffered some type of aggravation or injury during the course of his employment with the defendant, such assertion should be compared to the histories given to Mr King in 2008, when no explicit mention was made of any particular incident of injury or aggravation in May 2008.
22 In this sense, it was submitted that it was suggested in cross-examination, either expressly or by implication, that the plaintiff had sought to widen his allegation of injury beyond the bumpy road argument as first pleaded in the Statement of Claim and, furthermore, now had sought to allege an injury against the defendant when, in 2008, when reporting to Mr King, no such assertion was made. Furthermore, Senior Counsel for the plaintiff also referred to the words “will be suggested” which, consistent with authority, would suggest that this can be a reference to an address to a jury and matters for them to take into account when considering the credibility of the plaintiff.
23 In such premises, Senior Counsel for the plaintiff sought leave from the Court to adduce evidence of a prior consistent statement consisting of a statement declared by the plaintiff on or about 9 February 2009.
24 Such statement consists of approximately two-and-a-half pages and generally describes his employment with the defendant and also speaks to his pre-existing circumstances. In particular, on page 3 of that statement, there is recorded:
“Because my truck went to Adelaide, I had to drive a different truck. It was a white Kenworth 404 B-Double with a convention cab. It’s (sic) licence plate number was ###-###.
This truck was unsuitable for my back because the layout of the cab would not let me sit with my legs straight and in alignment. The engine cowling was positioned to the left of my seat and I had to sit in such a way that I had to twist my left leg inward, which also made it hard to push the clutch in and awkward to reach for things like the CB radio. I did not have these problems in my other truck which I would drive.
I believe the seat in this truck was a standard seat that was serviced and in good condition, however it was just ergonomically incorrect for my posture. I am reasonably sure that this seat was an ISRI brand of seat.
I had to drive this truck for two night[s] on the nights of 26th June 2008 and 27th June 2008. As soon as I started to drive this truck I could tell straight away that it was not suitable for my back. I was uncomfortable right from the start and by the time I got to the end of Somerville Road in Sunshine, which is only about three or four minutes, my back was fucked. It was really sore and painful.
The pain became much worse driving this truck throughout these two days.”[14]
[14]See Plaintiff’s Statement of 9 February 2009 at JCB 316-317
25 Counsel for the defendant submitted that it was doubtful as to whether the cross-examination of the plaintiff in relation to the Statement of Claim as originally pleaded, compared to the present Statement of Claim and the evidence of the plaintiff, would necessarily fall within s108(3)(b) of the Act. In this sense, it was submitted that the first Statement of Claim can only be understood to be a first version of events in this proceeding rather than an assertion, as I understood it, by the plaintiff himself. Furthermore, counsel for the defendant submitted that the Claim Form does not make any reference to bumps and, indeed, there were histories given to Mr Carey and Mr Melham in 2009 and 2010, respectively.
26 When pressed as to what the purpose of the cross-examination was, if it was not in relation to credit, counsel for the defendant stated at T711 L21 – T712 L4:
“No, but what I am saying to your Honour is that the admission of the prior consistent statement which is from February 2009 does not in any way explain why the plaintiff from April 2015 to July 2016 was put in before the court and had indicated by his pleadings and answers to interrogatories and intends to run a case a particular way and then to change that. The statement is no doubt consistent with the evidence he’s put before the court and can be seen to be consistent with the Amended Statement of Claim. But the attack on the credibility arises from the way in which the claim was initially put in 2015 and how it has now come before the court as at last month. The statement from some six years ago in no way explains why that has been the case. It doesn’t answer the attack on credibility”.
27 In this respect, counsel referred to the comments of the joint judgment in R v Graham,[15] where it is stated that it is important to identify how the evidence relates to the statutory premise for its admission.
[15]Op cit
28 Counsel for the defendant, quite fairly, in my view, accepted that the reports of Mr King and in particular the history obtained by him, had the potential to “open up” s108(3)(b) of the Act. In this sense, the issue was that such contemporaneous histories did not record any injury against the defendant.
29 Counsel for the defendant ultimately submitted that it must be noted that the history given to, and histories taken by, Mr King were taken in August 2008 and December 2008, and that the prior consistent statement made by the plaintiff was declared on 9 February 2009.
30 Counsel, again, very fairly, in my view, noted that it is not a “definitive” requirement that the prior consistent statement has to be before the histories taken by Mr King, but on the basis of the decision of R v DBG,[16] the timing of this statement is a relevant fact. Also, it was submitted that it must be taken into account that there are a number of other histories on which the plaintiff could rely and they include what is said to Mr Carey and Mr Melham at and around those times, and the contents of the Claim Form.
[16][2002] NSWCA 328
Conclusion
31 I accept the submissions of the defendant in relation to the issue pertaining to the cross-examination of the plaintiff in relation to the change in the Statements of Claim. Although, clearly enough, such cross-examination did relate to the credit of the plaintiff, the admission of the earlier prior consistent statement does not really identify how the proposed prior consistent statement remedies or addresses the attack on the credibility of the plaintiff in relation to the changes made to the Statement of Claim.
32 In relation to the cross-examination regarding the histories given to Mr King, I accept such cross-examination clearly goes to the credit of the plaintiff in that, seemingly, in August and December 2008, when giving a history to Mr King, there was no express reference to any injury during the course of his employment with the defendant. In this sense, it would be open to a defendant to suggest that the plaintiff has fabricated his present evidence that he has suffered injury during the course of such employment when compared to what he told Mr King.
33 Although it is clear enough that the statement by the plaintiff, said to be the prior consistent statement, was made in early 2009, there is close proximity between such statement and the histories given to Mr King. I propose to allow the plaintiff to rely on certain portions of his statement dated 9 February 2009. Considering that the credit issue pertains to whether the plaintiff suffered injury during the course of his employment with the defendant, I propose to allow the plaintiff to be re-examined as to whether or not he made a statement on or about 9 February 2009, in which he stated:
“I had to drive this truck for two night[s] on the nights of 26th June 2008 and the 27th June 2008. As soon as I started to drive this truck I could tell straight away that it was not suitable for my back. I was uncomfortable right from the start and by the time I got to the end of Somerville Road in Sunshine, which is only about three or four minutes, my back was fucked. It was really sore and painful.
The pain became much worse during driving this truck throughout these two days.”[17]
[17]See Plaintiff’s Statement of 9 February 2009 at JCB 317
34 And I so rule.
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