Houghton v Potts

[2022] NSWSC 464

Supreme Court

New South Wales

Medium Neutral Citation:

Houghton v Potts [2022] NSWSC 464

Hearing dates:

12 and 14 April 2022

Date of orders:

14 April 2022

Decision date:

14 April 2022

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. The proceedings are listed for final hearing commencing on 10 October 2022 with an estimate of five days.

2. Order pursuant to s 5B Evidence (Audio and Audiovisual Links) Act 1998 that the evidence of the plaintiff in each action be taken by audiovisual link.

2. Direct that the parties confer concerning any further directions or orders that may be required, in particular relating to whether the evidence of Mr Chris Long and/or the evidence of any other witness should be taken by audiovisual link, and the parties are to forward to my Associate any agreed directions relevant to the conduct of the trial.

3. Grant liberty to the parties to apply to Fagan J on 48 hours’ notice for any further directions that may be necessary to ensure that the trial can be conducted efficiently.

Catchwords:

EVIDENCE – Witness evidence – Plaintiffs resident in the United Kingdom and unable to travel to New South Wales – Whether the plaintiffs’ evidence should be taken by having a judge of the Court travel to the United Kingdom – Whether the plaintiffs’ evidence should be taken by audiovisual link – The Court’s experience of using audiovisual link technology – The use of audiovisual link not unfair to either party

Legislation Cited:

Evidence Act 1995 (NSW)

Evidence (Audio and Audiovisual Links) Act 2019 (NSW)

Category:

Procedural rulings

Parties:

Darren Houghton
Joanne Houghton (plaintiffs)
Julie Potts (defendant)

Representation:

Counsel:
D Campbell SC (plaintiff)
N Polin (defendant)

Solicitors:
Beston McManis (plaintiffs)
Wootton & Kearney (defendant)

File Number(s):

2016/144762 and 2019/75534

Publication restriction:

No

Judgment

1. The question before the Court in these proceedings concerns the manner in which the plaintiffs’’ evidence is to be taken, given that both of them resides in the United Kingdom and they are unable to travel to New South Wales.

2. In the first of the proceedings Mr Darren Houghton claims damages for severe spinal injury being sustained when he fell from a balcony in Fairlight on 28 December 2014. Mr Houghton, his wife and daughter occupied the unit under a lease from the defendants. Mr Houghton alleges that his fall and his consequent injury were caused by actionable negligence of the defendants in that the brick balustrade of the balcony was of an insufficient and unsafe height above the balcony floor and that it had a low step or infill at the intersection of the inside base of the balustrade with the floor.

3. Mr Houghton alleges that these features caused him to trip and to topple over the balustrade at a time when he was lifting an 11 year old girl, Ms Bethany Long, and turning his body as he did so. Ms Long is the daughter of a couple who are friends of Mr and Mrs Houghton. She was a guest at the unit at the time of the incident.

4. The drop from the top of the balustrade to a roof below was approximately two metres. Mr Houghton landed on his head, still holding Ms Long, and came to rest on his back with his head closest to the balcony and his feet furthest away, lying approximately at right angles to the alignment of the balustrade. Ms Long landed and came to rest on top of Mr Houghton on his chest and she was not injured.

5. In the second proceeding Mrs Joanne Houghton claims damages for psychiatric illness that she alleges she has suffered as a result of the injury to her husband and as a result of her exposure to his injured condition in the immediate aftermath of the fall.

6. The parties have fairly recently agreed upon quantum of damages in both actions and the proceedings are now ready for trial of the remaining issues of liability. Statements of witnesses and of experts have been served bearing upon the dispute over liability.

7. Mr Houghton and Ms Long were the only eyewitnesses to the fall. Their accounts are diametrically opposed. Mr Houghton’s evidence, according to a statement dated 19 July 2017, will be that he picked up Ms Long near the balustrade, with her facing him and his hands on her rib cage. According to the statement, he turned his body while still holding Ms Long; he says that he turned “towards where I came from”, apparently meaning in a direction away from the balustrade. Mr Houghton’s statement is that the fall occurred in the following manner,

I had a slight trip on the lip at the bottom of the wall (that is the balustrade) and my left side went against the wall while I was twisting. I went over the balustrade wall holding Bethany in my arms and trying to hold her up. I twisted and landed on my head and then slumped onto my back.

8. Ms Long’s statement is to the effect that Mr Houghton jocularly suggested that he would throw her off the balcony. He picked her up in a cradling fashion, with her head near his right shoulder. His right arm was under her shoulder and neck region and his left arm was under her legs. According to Ms Long’s statement, while Mr Houghton was holding her in that manner and facing outward from the balcony, he held her over the edge of the balustrade. From that position she says that they fell together over the edge onto the roof below. Ms Long says that she was able to stand up immediately after the fall.

9. Mr Houghton is a citizen of the United Kingdom. When his medical condition had sufficiently stabilised after the accident, he was repatriated and he now resides with his family in Somerset. He was 47 at the date of the accident and is now 54. He suffers permanent impairment from incomplete C2 tetraplegia. He has limited function of his upper limbs. He can walk up to 20 metres within his home with the aid of a walking frame. He requires assistance to get in and out of bed and in or out of a car. The residual function of his left arm and right leg is sufficient for Mr Houghton to be able to drive a motor vehicle. His respiratory function is impaired and he requires the assistance of continuous positive airways pressure by machine ventilation.

10. Mr Houghton’s bladder and bowel functions are impaired and he has numerous other disabilities. It is not practical for Mr Houghton to travel to Sydney to give evidence in the trial of these proceedings and, in any event, he is disabled from gainful employment and would not have the financial means to undertake the journey. In these circumstances the plaintiffs sought in late 2019 to have a judge of the Court travel to the United Kingdom to take Mr Houghton’s evidence. The defendants supported that course of action.

11. The then Chief Judge of this Division indicated to the parties that the Court would accede to the proposed solution but no formal order was made. At that time in late 2019 quantum of damages had not been agreed and both parties were endeavouring to engage further examinations of Mr Houghton by medical specialists resident and practising in the United Kingdom. It appeared that by travelling to the United Kingdom the judge who would be assigned to the case would be able to take the evidence of not only Mr and Mrs Houghton but also of a number of medical specialists called on both sides of the dispute.

12. The preparation of witness statements relevant to liability was incomplete in 2019 when the proposal to take evidence in the United Kingdom was mooted. During 2020 and 2021 there were long delays in arranging medical examinations, particularly because of public health restrictions in the United Kingdom and because of the necessity to avoid contact with Mr Houghton that might expose him to infection. I infer that he would have been vulnerable to the development of a severe form of the COVID-19 disease if he had acquired the virus.

13. The circumstances relevant to whether evidence in these proceedings should be taken in the United Kingdom are now quite different from those that prevailed in 2019. Following the resolution of quantum issues, the only witnesses resident in the United Kingdom are Mr and Mrs Houghton. Further, there are now risks associated with international travel that were not present in 2019. The advent of effective vaccination has meant that the risk to international travellers of suffering severe illness has substantially abated. However, airlines continue to require current, recent negative test results for all passengers and the risk of acquiring infection and receiving a positive test result on the eve of an international flight remains very high, particularly given the high number of new infections reported daily in New South Wales.

14. The relevant risk is thus one of significant and costly disruption if either the judge or any of the legal representatives who are scheduled to travel for a hearing in the United Kingdom should test positive and be unable to board their respective flights for travel in either direction, but particularly for the outward journey.

15. The defendants have adopted a neutral stance in relation to the plaintiffs’ proposal that their evidence be taken in the United Kingdom. This has been put on the express basis that the defendants do not wish to obstruct the plaintiffs from presenting their evidence in person, as they manifestly prefer.

16. The alternative open to the plaintiffs would be to apply under s 5B(1) of the Evidence (Audio and Audiovisual Links) Act 2019, (“the AVL Evidence Act”). An application could be made under that section for the evidence of both plaintiffs to be taken by audiovisual link. The plaintiffs have not made such an application. It is open to the Court of its own motion to order that the evidence be taken in that way; s 5B(1) expressly so provides.

17. Unusually the plaintiffs oppose that course. Most commonly it is the party calling a particular witness who wishes to utilise an audiovisual link and an opposing party who resists the application on grounds that effective testing and exposure of the witness in cross-examination will be impaired. The defendants in this case do not oppose taking the plaintiffs’ evidence by audiovisual link as a suitable means of overcoming Mr Houghton’s inability to travel. The defendants do not submit that cross-examination by this means would be compromised to their detriment.

18. In the present circumstances I would not make an order for the plaintiffs’ evidence be taken by having a judge of the Court travel to the United Kingdom if I should be satisfied that it would be appropriate to make an order under s 5B(1). I am of the view that that the audiovisual link solution to the problem of Mr Houghton’s inability to travel should be considered on the Court’s own initiative as a preliminary to ruling finally on the question of whether a judge should travel to England.

19. Turning to the matters prescribed in subs (2) of s 5B that may constitute a bar to the use of an audiovisual link, I find that none of them is applicable. There is no reason to think that facilities for an audiovisual connection in Somerset could not be reasonably made available. Mr Houghton is not completely house bound or bedridden. It is evident that he would have sufficient mobility, with assistance, to make his way to an audiovisual connection at some facility in his near locality.

20. Secondly, I am not satisfied for the purposes of para (b) of s 5B(2) that Mr Houghton’s evidence could more conveniently be given or made in the Court room or other place at which the Court is sitting. The simple fact is that he cannot travel to Australia for this purpose. Thirdly, for the purposes of para (c) of subs (2) I do not consider that the decision to take his evidence by audiovisual link would be detrimental to any party to the proceeding. Mr Campbell SC has advanced a number of points against that conclusion and I will address them shortly and explain why I am not persuaded by the matters that he raises.

21. Lastly, for the purposes of para (d) of s 58(2), I do not consider there is any risk that, if the audiovisual procedure should be adopted, Mr Houghton would fail to give his evidence. Clearly his case depends upon it. He is a critical witness in the causes of action being litigated by both himself and his wife.

22. Mr Campbell’s opposition to taking the plaintiffs’ evidence in this manner is based upon five grounds in combination. The grounds and my assessment of them are as follows. First, he submits that the technical capacity for taking evidence in this manner is unreliable and is likely to lead to interruptions and occasions when sound or visual aspects of the link are not satisfactory. From my own experience of using audiovisual links in court proceedings over many years, both whilst appearing at the Bar and sitting as a judge, I do not consider this a substantive objection. It is true that audiovisual links can be weak or unreliable. Such technical difficulties generally can be overcome quite readily. If a technical difficulty should develop at any time during the taking of the evidence, which could not be so overcome, then an adjournment would be granted until a better electronic facility could be established.

23. The Court’s experience of using audiovisual links for taking evidence has been very extensive over the past two years, when it has been a means forced upon the Court due to public health restrictions that have prevented witnesses from attending court in person. The experience has been that from a technical point of view the means is entirely satisfactory.

24. Secondly, Mr Campbell points to the time differences between the United Kingdom and Australia and he has expressed concern that these will result in difficulties for Mr and Mrs Houghton giving evidence at appropriate times of the day, either at their end or at the Court’s end. This can be overcome. In view of Mr Houghton’s grave disabilities and the compromise also to the health of Mrs Houghton, it may be necessary to fix hearing times that would primarily be suitable to the convenience of the plaintiffs themselves and for the Court and counsel in Sydney to adjust sitting hours to times late in the afternoon or very early in the morning. If that is required then it would certainly be the subject of appropriate orders by the trial judge to ensure that neither Mr nor Mrs Houghton is significantly hindered from being in a satisfactory state of wakefulness and alertness to give a fair account of themselves in the course of oral evidence.

25. Thirdly, Mr Campbell has expressed concern that Mr Houghton as a party would feel isolated and unsupported in giving his evidence from England and speaking to the Court through microphone and on a screen without his legal advisers there present with him by way of support and to guide him as to the process.

26. I do not regard this as a significant consideration and, to the extent that it exists at all, I think it could be overcome by the appointment of a local solicitor in Somerset, suitably briefed as to the proceedings, who could be in telephone contact with Mr and Mrs Houghton’s legal representatives in Australia. Through such an intermediary the Sydney based representatives could confer with Mr Houghton during breaks in the proceedings as necessary.

27. I take into account that a detailed statement has been provided by Mr Houghton and another one by Mrs Houghton. It is likely that the substance of their evidence in chief will, for the most part, be given by the tender of their statements. If not, it is apparent from the length of the statements that the whole oral recitation of their case in chief would not take particularly long. The presentation of their evidence in chief is not likely to be a wearing process during which they would be in need of significant professional support. On the other hand, whilst they are being cross-examined, they would not be permitted to confer, concerning their evidence, with legal advisers even if they were testifying before a judge who had travelled to the United Kingdom for that purpose.

28. The fourth matter raised by Mr Campbell is that he submits it is particularly significant that the two witnesses concerned are parties, not just witnesses called by a party. That does not appear to me to be a matter of any relevance to this issue. The capacity in which the situation of Mr and Mrs Houghton is under consideration for the purpose of an application of the AVL Evidence Act is their capacity as witnesses. They are both undoubtedly important witnesses. Mr Houghton is a critical witness to the case of both plaintiffs. But the importance of their evidence does not, either alone or in combination with other factors, carry weight against the exercise of the Court’s discretion to order that evidence be taken in this manner.

29. Fifthly, Mr Campbell submits that because of the diametric opposition of the accounts given by Mr Houghton on the one hand and Ms Long on the other hand, in substance the challenge to his case will place the Court in a position of determining whether he is deliberately untruthful in his description of what took place. Mr Campbell submits that s 140 of the Evidence Act 1995 (NSW) will come into play, pursuant to which the legislature has prescribed that the Court should take into account the nature of the issue in deciding whether the burden of proof is discharged. He submits that in this case there will be an issue whether Mr Houghton’s account is deliberately false.

30. I do not accept Mr Campbell’s submission in this respect. The question will be whether the plaintiffs have or have not discharged their burden of proving that the fall occurred in the manner described by Mr Houghton, such that the fall could have been attributable to some aspect of the physical condition of the balustrade. The case will not call for a finding by the Court of dishonesty or fraud in the bringing of the proceedings by Mr Houghton. But even if Mr Campbell’s analysis of the matter were sound with respect to s 140, I do not consider that there is any material disadvantage to Mr Houghton in persuading the Court as to the honesty and accuracy of his account arising from the circumstance that he will give it over the audiovisual link.

31. Based upon the experience to which I have referred earlier, there is no reason to think that the Court cannot reliably and fairly to both parties assess the accuracy of an account given of circumstances such as those concerned in this case when it is presented by audiovisual link.

32. Lastly, Mr Campbell submitted that as the former Chief Judge had two years ago indicated the Court would be willing to send a judge to the United Kingdom for the taking of his evidence, it would now inflict upon Mr Houghton a sense of abandonment, or being let down, for the Court to depart from that proposal and instead to require that his evidence be given over audiovisual link. If I thought that was a material or potentially determinative consideration, I would adjourn this application for sufficient time to enable the plaintiffs to put on evidence to substantiate Mr Campbell’s proposition, which as expressed from the Bar Table is essentially speculative.

33. But on the assumption that Mr Houghton would express feelings such as those that Mr Campbell has attributed to him, I do not think this would be a relevant consideration to be taken into account at all. Any such view taken by the plaintiff would be an emotional reaction and not rational or appropriate to be acted upon by the Court, in light of the history of this procedural issue as I have outlined it in these reasons.

34. Against all of the matters that Mr Campbell has raised, I take into account that the evidence to be given by Mr Houghton is quite simple and in short compass. It is not such as should give rise to any difficulty at all in presenting it clearly by audiovisual link. It is not such as would create difficulties for the Court making an assessment of the credibility and reliability of Mr Houghton’s account, if presented in that manner rather than by hearing him in person. The evidence in chief, which is critical to the determination of this case, concerns on his part some physical movements on the balcony that took place over the space of a few seconds. In concept, in extent and in content it is narrow evidence that, in my view, can be readily presented in this manner.

8. I take into account also that the longer aspect of the evidence to be given by Mr Houghton is likely to be his cross-examination. The defendants have not submitted that their capacity to test Mr Houghton as a witness will be adversely affected by the medium and, in any event, I see no reason to think that they would be hindered. I cannot see that there would be any detriment to either party from taking the evidence in this manner.

Orders:

1. The proceedings are listed for final hearing commencing on 10 October 2022 with an estimate of five days.

2. Direct pursuant to s 5B Evidence (Audio and Audiovisual Links) Act 1998 that the evidence of the plaintiff in each action be taken by audiovisual link.

2. Direct that the parties confer concerning any further directions or orders that may be required, in particular relating to whether the evidence of Mr Chris Long and/or the evidence of any other witness should be taken by audiovisual link, and the parties are to forward to my Associate any agreed directions relevant to the conduct of the trial.

3. Grant liberty to the parties to apply to Fagan J on 48 hours’ notice for any further directions that may be necessary to ensure that the trial can be conducted efficiently.

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Decision last updated: 19 April 2022