Jackson v Lithgow City Council

[2010] NSWCA 136

New South Wales

Court of Appeal

CITATION:	Jackson v Lithgow City Council [2010] NSWCA 136
HEARING DATE(S):	16 April 2010
JUDGMENT DATE:	11 June 2010
JUDGMENT OF:	Allsop P at 1; Basten JA at 46; Grove J at 110
DECISION:	1. Appeal allowed. 2. Orders made by the District Court on 13 June 2007 be set aside and in lieu thereof it be ordered: (a) there be verdict and judgment for the plaintiff in the sum of $203,475 to take effect as at 13 June 2007; (b) interest thereon be payable and calculated by reference to the Civil Procedure Act (NSW) 2005, s 101; and (c) the defendant pay the plaintiff’s costs. 3. The respondent pay the appellant’s costs of the appeal including the first and second appeals to this Court. 4. Each party bear its and his own costs of the special leave application to the High Court of Australia. 5. Within 14 days: (a) the appellant file and serve an amended notice of appeal challenging the rejection of the ambulance records by the primary judge; and (b) the respondent file and serve a notice of contention that the primary judge was correct in rejecting the ambulance records on the basis of the arguments put forward in this Court.
CATCHWORDS:	APPEAL – remitter from High Court for rehearing of appeal – first hearing of the appeal proceeded on an inaccurate record of evidence – question mark symbol cut off in original appeal papers – effect of question mark on probative force of evidence - EVIDENCE – admissibility and relevancy – notes of ambulance officers – inference of fact as to cause of injury and surrounding circumstances – business records under Evidence Act 1995 (NSW), s 69(1) – hearsay rule did not apply – representation made by maker of the document on the basis of information indirectly supplied by someone who had or might be reasonably supposed to have had personal knowledge of the asserted fact - EVIDENCE – admissibility and relevancy – opinion evidence under Evidence Act 1995 (NSW), s 78 – opinion of underlying matter or event includes perceptions of the aftermath of an incident – meaning of the word “necessary” in s 78(b) – the section does not require absolute necessity - NEGLIGENCE – causation – evidence – whether on the balance of probabilities the appellant suffered his injuries as described in the ambulance officers’ notes
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) s 5B Evidence Act 1995 (NSW), s 60, 69(1), 76, 78, 135, 136, 137, 183 General Agreement on Tariffs and Trade 1947 (GATT)
CATEGORY:	Principal judgment
CASES CITED:	Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No.5) (1996) 64 FCR 73 Angel v Hawkesbury City Council [2008] NSWCA 130 ASIC v Rich [2005] NSWSC 417; 191 FLR 385 Bank of Valletta PLC v National Crime Authority [1999] FCA 1099 Bradshaw v McEwans Pty Ltd (High Court of Australia, 27 April 1951, unreported) Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 Guide Dog Owners’ & Friends’ Association v Guide Dog Association of New South Wales & ACT [1998] FCA 480; 154 ALR 527 Holloway v McFeeters [1956] HCA 25; 94 CLR 470 Jackson v Lithgow City Council [2008] NSWCA 312 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Lithgow City Council v Jackson [2009] HCA Trans 184 Luxton v Vines [1952] HCA 19; 85 CLR 352 McCulloch v Maryland (1819) 4 Wheat 316 R v Harvey (NSW Court of Criminal Appeal, 11 December 1996, unreported) R v Panetta (1997) 26 MVR 332 Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; 130 FCR 569 Smith v The Queen [2001] HCA 50; 206 CLR 650 Thomas v Mowbray [2007] HCA 33; 233 CLR 307
TEXTS CITED:	Australian Law Reform Commission, Report No 26, Evidence (1985) China – Audio Visual Entertainment Products (WT/DS363/AB/R) (19 January 2010) JA Wigmore Evidence in Trials at Common Law (Chadbourn Rev 1978 Little, Brown & Co Vol 7 JD Heydon, Cross on Evidence (2009, 8th Australian Edition, Butterworths) Odgers Uniform Evidence Law (2008, 8th Ed, Lawbook Co)
PARTIES:	Craig William Jackson (Appellant) Lithgow City Council (Respondent)
FILE NUMBER(S):	CA 2007/266092
COUNSEL:	Dr A S Morrison SC, Mr D Elliott (Appellant) Mr S G Campbell SC, Mr S E McCarthy (Respondent)
SOLICITORS:	Gerard Malouf & Partners (Appellant) DLA Phillips Fox (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	111/2005
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:	13 June 2007

49614/07

ALLSOP P
BASTEN JA
GROVE J

Friday 11 June 2010

JACKSON v LITHGOW CITY COUNCIL

Judgment

1 ALLSOP P:

On 31 July 2009, the High Court granted special leave to appeal from the judgment and orders of this Court given and made on

24 November 2008; treated the appeal as instituted, heard instanter and allowed; set aside the orders of this Court on 24 November 2008; and remitted the matter to this Court for further hearing.

2 The reason for the orders of the High Court was that the appeal to this Court had proceeded on an inaccurate record of the trial. The entry in the ambulance record set out at [37] of my earlier reasons (“Fall from 1.5 metres on to concrete”) had a question mark cut off on the photocopy in the original appeal papers. Thus, the entry should have read: “? Fall from 1.5 metres on to concrete”.

3 The matter was remitted for rehearing. The considerable delay in bringing the matter back to the Court lay at the feet of the parties. No particular disadvantage has accrued to the Court in the disposition of the matter because of that delay. However, it should be noted that the Court was in a position to hear the matter promptly after July 2009, had the parties exercised despatch in bringing the matter back to it.

4 The parties were content for the rehearing to be before the same bench. The arguments put forward did not amount to a complete reargument of all issues. Rather, the parties focused on the documents in question (the ambulance records) and the significance that their accurately stated contents had for the reasoning otherwise contained in my earlier reasons, with which Basten JA and Grove J had agreed.

5 These reasons, therefore, assume a familiarity with my earlier reasons (Jackson v Lithgow City Council [2008] NSWCA 312).

6 It is first important to recall that the primary judge had rejected the ambulance records: see my earlier reasons [39]-[47]. The notice of appeal did not complain about this rejection. Nevertheless, it was accepted at the first appeal to this Court and on reargument that the admissibility of the documents was open for legitimate debate. The orders that I would make include an order for the filing by Mr Jackson of an amended notice of appeal to cover the issue of the admissibility of the ambulance records.

7 A legitimate consequence of the admissibility and effect of the ambulance records arising as they did in the run of argument on the first appeal and of the argument miscarrying because of the inadequate record, is that the respondent Council have the opportunity (which it took) of arguing against the admissibility of the ambulance records on the rehearing. For the reasons expressed below, I am of the view that the ambulance records are admissible. The orders that I would make include an order for the filing by the Council of a notice of contention to uphold the view of the primary judge of the inadmissibility of the ambulance records for the reasons argued by the Council in this Court.

8 On rereading my earlier reasons, I noticed that [37] dealt with the two ambulance documents without clear differentiation. I will attempt now to remove any infelicity of expression.

9 The two records were business records in that they fell within the terms of the Evidence Act 1995 (NSW), s 69(1). The removal of the effect of the hearsay rule in respect of any representation will be brought about in these circumstances by the satisfaction of s 69(2):

“(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.”

10 It is to be inferred that the first ambulance document was filled out by one or both of the two ambulance officers attending: J Godwin (driving) and M Penney (officer treating). I will refer hereafter to the ambulance officers as the makers of the note. It matters not whether it was one or both who made the note. Both signed the note. Both can be inferred to have had the same opportunity to see what was available to be seen on that morning.

11 This first ambulance document reveals that the booking for the ambulance occurred at 0657 hours, that the officers arrived at the scene at 0707 hours, that they had patient contact at 0709 hours and that they departed the scene at 0731 hours. The record also shows an “estimate time of incident/symptom” as 0700 hours. This can be seen as a very approximate time which does not detract from the likely accuracy of the other timing records.

12 A box with two headings appears just below the middle of the page. The two headings are “chief complaint” and “patient history”.

13 The five lines adjacent to the first heading, “chief complaint” contain the following (as best as I can read it):

“ Decreased level of consciousness
OE pt responding to painful stimuli, haematoma
To RI abrasions to face & haemorrhage
[Indistinct] nose. Extremities cold to touch, trunk [indistinct]
Pt combative throughout [Rx or Pt] incontinent of urine .”

The three lines adjacent to the second heading, “patient history” contained the following:

“Found by bystanders - parkland
? Fall from 1.5 metres on to concrete
No other Hx”

14 The record also revealed a “GCS” which counsel was agreed was a Glasgow Coma Score of 7 and 8 at 0711 and 0730 hours, respectively.

15 The second ambulance document, the “retrieval record” was apparently filled out at Nepean Hospital by one or both of a retrieval team of Vard Pearce and Scott Monroe, after Mr Jackson had been transferred from Lithgow Hospital in a helicopter. In a box entitled “clinical information given” the following appeared:

“ Found 0720 unconscious in park at bottom of drain.
[Indistinct] 1½ m drop from edge, with two dogs.
Police investigated site – no evidence of fight.
O/E in ED GCS7 pupils equal & sluggish.”

16 The second document, the retrieval record, can be taken to record a statement made to the maker of the document that Mr Jackson was unconscious when found at the bottom of the drain. That was, of course, not something that either the maker of the document, or the original ambulance officers observed personally. The circumstances surrounding the chain of events leading to the making of this note are not clear. It can be inferred that it was the recording of what was passed on by those who found him (the “bystanders” in the first attendance record) of what they had observed. It is not clear how long the indirect chain of human communications was; but it is, nevertheless, reasonable to infer that the representation was made on the basis of information indirectly supplied by the bystanders. This representation was, therefore, admissible and the hearsay rule did not apply to it because (being contained in a business record for the purposes of s 69(1)) the representation was made by the maker of a document on the basis of information indirectly supplied by someone who had or might be reasonably supposed to have had personal knowledge of the asserted fact: s 69(2)(b).

17 Likewise, the fact that the police investigated the site and found no evidence of a fight can be understood to be what the police said to the ambulance officers and so there is a representation on the basis of information indirectly supplied by someone who had or might reasonably supposed to have had personal knowledge of the asserted fact.

18 The first ambulance record identifies a “decreased level of consciousness”. Thus, it is legitimate to say that the two documents do not lead to the conclusion that the attending ambulance officers came upon Mr Jackson unconscious and prone. To the extent that my earlier reasons drew that conclusion they should be qualified. Nevertheless, Mr Jackson’s decreased consciousness and his recently earlier state of unconsciousness assist in concluding that Mr Jackson was not on his feet walking about. He may have been “combative throughout”, but he was responding to painful stimuli.

19 The line in question “? Fall from 1.5 metres on to concrete” is adjacent to “patient history”. A history is generally what one is told. That is certainly so of the preceding line – “found by bystanders”. However, there is no reason to infer that the next line was solely or even partly a conclusion from what the bystanders said. The observations of the ambulance officers were just as much relevant to the history of this patient as anything the bystanders had to say about what their thoughts were. The ambulance officers were in as good a position to assess the facts visible as the bystanders. The history here was what had happened to the patient. It is more likely to be the ambulance officers’ view in the light of what they could perceive. The line is an opinion, in the sense of an inference drawn, that there was a question whether Mr Jackson had fallen 1.5 metres on to the concrete. The ambulance had the advantage of seeing the physical relationship of the wall to Mr Jackson’s body (whether or not he was unconscious or of decreased consciousness), of seeing his injuries and the surrounding physical environment, of seeing his position, the position of blood and urine and all surrounding structures. They had the advantage of putting together, with the aid of contemporaneity, all the physical perceptions of what they saw about him, his injuries, the placement of his body in relation to the wall and drain and all other relevant perceived facts. This caused them or one of them to raise the question whether he did not fall from the 1.5 metre wall. It did not cause the maker to posit any other possible cause.

20 Although the opinion is less positive than it would be without the question mark, I do not think that the question mark robs the opinion or inference of all probative force. It is to be placed with all the other evidence; it adds an opinion (an inference) of someone present, who had a legitimate reason to draw the inference, that from all that he or they could see there was a question whether Mr Jackson had fallen off the wall. That inference, or opinion, is, in my view, still sufficient to tip the balance of the evidence making it more likely than not that Mr Jackson suffered his injuries as described in [48]-[55] of my earlier reasons. I would maintain what I said in [56] except that I accept that the evidence was not sufficient to conclude that the ambulance officers saw a still, prone and unconscious body of Mr Jackson. Nevertheless, the inference that they, or one of them, drew that there was a question whether Mr Jackson had fallen from the wall was reached with the advantage of seeing him, his state of reduced consciousness, his injuries, his position, the position of blood and urine and the surrounding structures. The advantage of the ambulance officers and the inference they drew makes the posited cause of injury more likely than not.

21 The above is predicated upon the admissibility of the note in question.

22 Mr Campbell SC, who, with Mr S E McCarthy, appeared for the Council, submitted that there was no relevant opinion for the purposes of s 78.

23 First, he said that the ambulance officers did not see the fall and so the fall was not “the matter or event” for the purposes of s 78. That is self-evidently so. The “matter or event” is all the matters relevant to the ambulance officers to be perceived at the scene concerning Mr Jackson, his state of consciousness, his injuries, his body position, the position of blood and urine and the surrounding structures.

24 The opinion, being the inference drawn from what they saw, heard or otherwise perceived about these matters (JD Heydon, Cross on Evidence (2009, 8^th Australian Edition, Butterworths) at 1008 [29010]) satisfied s 78(a).

25 Neither the dictum of Kirby J in Smith v The Queen [2001] HCA 50; 206 CLR 650 at 670 [60] nor what was said in Angel v Hawkesbury City Council [2008] NSWCA 130 at [51]-[57] denies the application of s 78(a). The opinion must be of the eye witness and be based on what he or she saw, heard or otherwise perceived. That is the case here.

26 It must also be that evidence of the opinion is necessary to obtain an adequate account or understanding of the relevant perception: s 78(b). This latter requirement does not mean, however, that a distinction should be drawn between an opinion only being a “compendious description” of what was perceived and an opinion which “actually draws an inference” from what was perceived: cf Odgers Uniform Evidence Law (2008, 8^th Ed, Lawbook Co) p 302. The dividing line between these two concepts is indistinct and not derived from the text of the statute.

27 In the attack on admissibility made by reference to s 78(b), reference was made to the common law allowing lay opinions when the facts from which the witness received an impression were too evanescent in their nature to be recollected, or too complicated to be distinctly narrated: cf JA Wigmore Evidence in Trials at Common Law (Chadbourn Rev 1978 Little, Brown & Co Vol 7) at [1918] and see J D Heydon op cit at 1040-1042 [29085]-[29100].

28 Reference was also made to the discussion in the Law Reform Commission Interim Report 1985 (ALRC No 26 Vol 1) at [739]-[740] of what became s 78 in the Evidence Act. In that discussion, the notion of “necessary” in s 78(b) was said to be preferable as a control measure than other possible expressions, such as what was “helpful”.

29 The respondents submitted that it was not “necessary”, here, to give an adequate account of what the ambulance officers saw or perceived to allow the receipt of the opinion into evidence. It was submitted that for s 78(b) to be engaged the underlying the matter or event had to be characterised as the kind of evanescent or complicated facts which had given rise to the common law exception. I do not think such a requirement of characterisation should be imposed on s 78; it does not flow from the words of the section.

30 Here, had the ambulance officers been called to give evidence as to their perceptions of all the aspects of Mr Jackson and his surroundings, they may or may not have been able to express themselves in a way to give an account of their perceptions as to Mr Jackson’s body position, state of consciousness, injuries, position of blood and urine and surrounding structures. Whether the note containing their opinion in those circumstances would have been “necessary” to obtain an adequate account of their evidence might depend on what they were able to say. If, however, they were unable to recall any or many of their perceptions then to obtain an adequate account of their perceptions one would need to accept the inference (the opinion) into evidence as the only evidence bearing on the nature of what they saw. Those perceptions, whatever they were, caused the officers at the time to draw the inference (and thus form an opinion) that there was a question whether Mr Jackson fell from the 1.5 metre wall.

31 Not being called, likewise, the only way to get any account of their perception was to admit the documents and the opinion contained therein.

32 Section 78 should be construed as requiring a rational basis for the opinion: see R v Panetta (1997) 26 MVR 332 at 336 and Guide Dog Owners’ & Friends’ Association v Guide Dog Association of New South Wales & ACT [1998] FCA 480; 154 ALR 527.

33 Section 78 permits the opinion to be admitted without the evidence of the primary facts: R v Harvey (NSW Court of Criminal Appeal, 11 December 1996, unreported) and Guide Dogs. The respondent counsel accepted this last proposition and did not assert that s 78 required there first to be the exhaustion of any recollection by a witness before any opinion contemplated by s 78 could be admitted.

34 The section should not be constricted by the imposition of tests or requirements that do not find their place in the text of the provision.

35 Here, though the inference and opinion is one that there is a question, it was nevertheless an inference, and thus an opinion. I am satisfied that the inference (and thus the opinion) was based upon what the ambulance officers perceived (rather than merely what they were told by the bystanders); I am satisfied that the matters of perception were what they saw of Mr Jackson, his state of reduced consciousness, his injuries, his position, the position of blood and urine and the surrounding structures. With the advantage of contemporaneity and all these perceptions, I am satisfied that in the light of the failure of either side to call the ambulance officers to obtain any account of the nature and character of their perceptions of the matters to which I have referred, it was necessary to receive into evidence the opinion that there was a question whether Mr Jackson had fallen 1.5 metres on to the concrete.

36 For these reasons, I am of the view that the documents being the two ambulance records (or the relevant parts of them) were admissible and that the opinion in the second line adjacent to “patient history” in the first of those documents was an opinion within the meaning of s 78 of the Evidence Act and, in all the circumstances, when added to the totality of the evidence, made it more likely than not that Mr Jackson had fallen from the wall in the manner I described in my earlier reasons.

37 For these reasons, I would make the same orders made by the Court on 24 November 2008.

38 I would also direct that the appellant file and serve, within 14 days, an amended notice of appeal raising a challenge to the primary judge’s rejection of the ambulance records.

39 I would also order that the respondent Council, within 14 days, file and serve a notice of contention seeking to uphold the rejection of the ambulance records on the grounds argued in the appeal.

40 This leaves the question of costs.

41 An issue arises as to who should pay or bear the costs occasioned by the inadequate record being put before this Court in the first hearing. The appellant was primarily responsible for the preparation of the appeal book. That said, the issue as to the ambulance records arose in argument. Both sides and their advisors can therefore, perhaps, be forgiven for the error. My view is that, though some additional costs have been expended in this Court by reason of the error, the appellant should still have his costs because of the view that I have taken as to the evidence.

42 As to the costs of the special leave application, the High Court in order 4 made on 31 July 2009 said:

“The costs of the first appeal to the Court of the Appeal and the costs of [sic: in] this Court to abide the outcome of the further proceedings in the New South Wales Court of Appeal.”

43 To the extent that the High Court was remitting to this Court the question of costs in relation to the special leave application and not retaining for itself the sole authority to deal with those costs (a matter that I respectfully assume, but am not sure of), I would order that each party bear its and his own costs of the special leave application. I would make this last order as to costs because of the joint responsibility for the mistake.

44 Thus, the orders that I would make are:

1. Appeal allowed.

2. Orders made by the District Court on 13 June 2007 be set aside and in lieu thereof it be ordered:

(a) there be verdict and judgment for the plaintiff in the sum of $203,475 to take effect as at 13 June 2007;
(b) interest thereon be payable and calculated by reference to the Civil Procedure Act 2005 (NSW), s 101; and


(c) the defendant pay the plaintiff’s costs.

3. The respondent pay the appellant’s costs of the appeal including the first and second appeals to this Court.

4, Each party bear its and his own costs of the special leave application to the High Court of Australia.

5. Within 14 days:

(a) the appellant file and serve an amended notice of appeal challenging the rejection of the ambulance records by the primary judge; and

(b) the respondent file and serve a notice of contention that the primary judge was correct in rejecting the ambulance records on the basis of the arguments put forward in this Court.

45 After completing these reasons, I have had the opportunity of reading the reasons of Basten JA. His Honour’s reasons revisit some of the matters fully agitated at the first appeal hearing, but not re-agitated on re-argument. The Court did not call upon the parties for a further re-agitation of issues to deal with these wider issues for three reasons: first they had been fully canvassed at the first hearing, secondly, the relevance of the ambulance documents is to be assessed by reference to the totality of the evidence, a matter evident on the second argument and, thirdly, the cost to the parties in a modest claim of such further legal argument.

46 BASTEN JA: The background to the rehearing of this appeal is explained in the judgment of Allsop P. I agree with the orders which his Honour proposes and, subject to what follows below, with his reasons. (It is convenient to refer to Mr Jackson as “the plaintiff.”)

Scope of ‘remittal’

47 As the President has explained, the orders made by this Court on 24 November 2008 were set aside the by High Court because, at the first hearing of the appeal, the record of evidence was inaccurate in a material respect: Lithgow City Council v Jackson [2009] HCA Trans 184 at line 470. The matter was remitted to this Court “for further hearing of the appeal”: order 3, at line 540.

48 This was not a remittal in the sense of sending a matter before one court to another for determination: the orders of this Court having been set aside, but no orders made in substitution therefor, the appeal to this Court remained undetermined. In giving the reasons of the High Court, Hayne J noted an argument put on behalf of Mr Jackson that the conclusion that negligence was established “remained open, notwithstanding the presence or absence of the question mark on the ambulance retrieval form”: at line 485. His Honour continued:

“Nothing that is said in these reasons is to be understood as foreclosing in any respect the arguments that the parties would seek to advance in this or in other respects about the issues of causation that will fall for consideration by the Court of Appeal on the further hearing of the appeal to that court.”

49 Although, when the matter was listed for rehearing, the parties limited their submissions, as far as possible, to the effect of the inclusion of the correct ambulance record in the material available to this Court, it is not possible to review that material abstracted from the factual context in which it was created and a full reconsideration of the forensic issue to which it was relevant.

50 Furthermore, at the rehearing the parties dealt in more detail than on the earlier occasion with the admissibility of the ambulance records. It is convenient to turn first to the question of admissibility.

Admissibility of report

51 The content of the ambulance officers’ report is set out in the judgment of the President at [13] above and need not be repeated. The critical line, in the section headed “Patient History” is “? Fall from 1.5 metres onto concrete”. The trial judge, Ainslie-Wallace DCJ, did not refer to that evidence in her judgment, possibly because she had excluded it from the evidence, or because she thought it was of very little weight. What in fact happened during the trial is unclear.

52 The records of the ambulance service of 18 July 2002 were admitted as Ex J: Tcpt, 30/03/07, p 306. Shortly thereafter, Mr Campbell SC, for the Council, invited her Honour not to accept “the written material … beside patient history as evidence of the fact”: p 307(50). Her Honour expressed some doubt as to whether it should be excluded, because it appeared to have some relevance. Counsel then stated that he was not asking her Honour to excluded it, but to limit its use, pursuant to s 136 of the Evidence Act 1995 (NSW): p 308(12). The discussion appears to have proceeded on the basis that the evidence was hearsay and should not be admitted as evidence of the truth of the contents of the statement.

53 Thereafter, the discussion became confused. Counsel for the plaintiff (Mr Elliott) invited her Honour to consider the circumstances in which s 136 operated: pp 308(50)–309(5). However, her Honour expressed the view that Mr Campbell was not asking her to deal with the matter under s 136, but “to limit the use of the hearsay material … to not be evidence of the truth of the contents but evidence of the fact … of it being said”: p 309(15). Her Honour then stated that the statement by the ambulance officers was of no weight, because it did no more than express an opinion as to the critical fact, which was a matter for the court: p 309(25). Counsel for the plaintiff made it clear that the statement by the ambulance officers would be of assistance in determining the orientation of the plaintiff’s body, when found. He continued:

“I can’t prove orientation of the body by a photograph taken at the time or recollections of anybody who saw it at the time but what I can say is that an ambulance officer who had no duty to do anything other than record the most accurate history he possibly could with the benefit of his training and experience formed the view that that was the most likely history and was sufficiently convinced of that as to write it on a report where this would be a critical matter and that your Honour would therefore draw comfort that the orientation of the body was likely to be one that would suggest to anybody who happened on the scene that it occurred because the plaintiff was walking in an easterly direction of the western wall.”

54 Her Honour then stated, and this appears to be as close to a ruling as eventuated (p 309(50)):

“I still propose to – I’ll accede to Mr Campbell’s – I’m not, Mr Elliott – that of all the things is not going to be the most persuasive.”

55 Although her Honour may have misunderstood Mr Campbell’s application, her statement should be understood as a ruling pursuant to s 136. It is commonly accepted that s 136 permits a court to regulate the use of evidence of a previous representation, admitted for a purpose otherwise than as proof of an asserted fact, for which purpose it would be inadmissible pursuant to the hearsay rule (s 59 of the Evidence Act), but which limitation on use might be circumvented by s 60. Section 136 reads as follows:

“ 136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing.”

56 As it was not contended that the hearsay rule does not apply to opinions, the conclusion of Hely J that it does should be accepted: Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; 130 FCR 569 at [13]-[18]. It was not in dispute that the Ambulance Service record constituted a “business record” for the purposes of s 69(1) of the Evidence Act. If it had contained an assertion of fact, being a fact which the maker of the document had or might reasonably be supposed to have had personal knowledge of, the hearsay rule would not apply to the document: s 69(2). Further, pursuant to s 69(5):

“(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived ….”

57 The extent of the perceptions of the ambulance officers will be addressed below in the context of s 78. The matter about which they expressed an opinion was the cause of the appellant’s injuries. The cause was identified as an event, namely a fall from 1.5 metres. That asserted fact, as explained by the President, was an opinion, in that it was an inference drawn from observable data: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd(No.5) (1996) 64 FCR 73 at 75 (Lindgren J); Bank of Valletta PLC v National Crime Authority [1999] FCA 1099 at [20] (Wilcox, Whitlam & Lehane JJ). The respondent’s submission that the question mark deprived their opinion of that status should not be accepted. The question mark indicated a level of uncertainty, but did not demonstrate that no assertion of an opinion was intended.

58 The Court may draw from the document itself and from the surrounding circumstances, inferences as to what the person stating the opinion had observed: Evidence Act, s 183. (References in the cases to opinions as ‘inferences from observable and communicable data’ reflect language used by Wigmore at par 1917: the second epithet, ‘communicable’, does not seem to be a necessary element and, indeed, the elements identified provide neither a complete nor necessary definition, although often treated as such.)

59 There is a further question as to whether an opinion contained in a business record would be inadmissible unless it fell within an exception to the opinion rule: Evidence Act, s 76; ASIC v Rich [2005] NSWSC 417; 191 FLR 385. In that case, Austin J held that financial records of a corporation, admitted pursuant to the business records exception to the hearsay rule, were not subject to the opinion rule, which only operated with respect to opinion evidence given by a witness in court: at [215]-[216]. The statutory basis for such a conclusion may be doubted, but it is not necessary to pursue the issue in the present case, as neither party contended that the opinion rule did not apply.

60 Accordingly, it is necessary to determine whether the opinion falls within the exclusion in s 78 for evidence of an opinion, based on what a person saw, heard or otherwise perceived about a matter or event, where that evidence is “necessary” to obtain an adequate account or understanding of the person’s perception: set out at [*] above.

61 The respondent’s major argument on admissibility was encapsulated in the following propositions in its written submissions:

“53. The learned author of Cross on Evidence , 7 ^th Australian Edition (2004) at page 944 [29085] (citing Wigmore) states the common law rule in the following terms:
When ‘the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separately and distinctly narrated’, a witness may state an opinion or impression. This is because the witness was better equipped than a jury to form it, and it is impossible for the witness to convey to the jury an adequate idea of the premises upon which the witness acted.
54. It is submitted that the conjunctive conditions necessary to be satisfied to engage the s 78 exception must proceed on this same basis. That is, the witness must be an eyewitness to the relevant matter or event, in this case the fall itself, and because of the evanescent nature of his or her perception, it may be too difficult for the witness to recount the various or individual components of perception upon which the opinion was formed, the only way the relevant primary perceptions can be conveyed is by expressing the opinion.”

62 The proper application of s 78 will be addressed below, but it is convenient to address immediately three aspects of these submissions. First, by running together the separate and alternative characteristics of evanescence and complication (as stated by Wigmore) the submissions seek to impose on the statutory reform less flexibility than existed under the common law rule. Secondly, there is a degree of incoherence in the dual proposition that the witness is “better equipped” than the court to form the opinion and that it is “impossible” for the witness to convey the underlying elements of his or her perception. Is it sufficient that the witness be in a better position to assess the information, or it is necessary that it be impossible to convey the information otherwise? Thirdly, the suggestion that s 78 must be construed in the same way as the general law would only be true if the section were clearly intended to codify the general law.

63 The submissions did not seek to make good that last proposition. It gives rise to a question, not addressed in argument, as to whether the exclusion of opinion evidence found in s 76 of the Evidence Act was intended to exclude the kinds of inference and impression which would have been admissible under the general law, so that their continued admissibility depends upon the operation of the exceptions. If the exclusionary rule were intended to have such a comprehensive effect, it would be necessary to give a broad construction to, for example, s 78, so as to avoid the exclusion of evidence of impression and inference without which much testimony would become an unhelpful artefact. Even giving s 78 a broad operation might not properly resolve the matter. The recounting of a conversation commencing, “she then said words to the following effect …” would only be admissible once the proponent of the evidence demonstrated the impossibility (or perhaps the impracticability) of repeating word for word what had been said. It seems unlikely that the structure of the Evidence Act (stating a rule of general exclusion, followed by exceptions) was intended to have such an impractical effect.

64 More specifically, the respondent contended that because the ambulance officers did not witness the actual fall, they were not entitled to express an opinion as to that event. According to the submission, opinion evidence will be admissible under s 78 only where it seeks to identify a characteristic of a perceived event, such as the speed of a car, as observed by the witness, just prior to an accident.

65 The linguistic structure of s 78(a) is awkward. The intention might have been clearer if the paragraph had referred to “the opinion about a matter or event, based on what the person saw, heard or otherwise perceived”. Nevertheless, that is not the structure and it appears that the preposition “about” is concerned with perceptions. That reading is consistent with paragraph (b) which refers to “the person’s perception of the matter or event”. Nevertheless, a commonsense approach should not be based upon semantic niceties. Opinions, or inferences, are drawn in order to fill gaps in knowledge. An opinion that a person was drunk at a particular time is an opinion as to the cause of the person’s behaviour or appearance. The witness should not be excluded from giving such evidence because he or she did not witness the person drinking alcohol. The present case is no different. The ambulance officers appear to have reasoned backwards from their perceptions of the appellant when they first saw him, to his position at an earlier point in time, which they did not see. Perceptions of the aftermath can properly be described as perceptions “about” the event which led to that result.

66 The next question is whether evidence of the opinion was “necessary’ to obtain an adequate account or understanding of the ambulance officers’ perception. That question could be approached in two ways: the first might be to ask whether the ambulance officers would be allowed to express the opinion in that form, if called to give their evidence orally. The second depends on the circumstance that they were not called and that this was the only evidence of their perceptions; is that sufficient to demonstrate necessity? A practical approach is to say that if it were reasonable not to seek to call them, then it would be necessary to admit the document. The first question is thus not an independent test, but the answer will inform an assessment of the reasonableness of not calling them.

67 The answer to the first question will depend in part upon what the officers recollected of the events of that morning. If they had been called, those aspects of their recollection could have been explored on a voir dire, in order to determine the admissibility of the opinion. However, in circumstances where they were not called, it may be open to the Court to draw an inference as to what they might have said or, alternatively, the appellant may fail, because he did not establish that they had no relevant ability to describe their perceptions and hence he had failed to demonstrate that evidence of the opinion was “necessary” to obtain an adequate account or understanding of their perceptions.

68 The resolution of this question requires consideration of the term “necessary”, and hence the burden placed on the party tendering the evidence. As explained in McCulloch v Maryland (1819) 4 Wheat 316 at 414; 17 US 159 at 203, referred to by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [101], the word “necessary” “has not a fixed character … admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports”.

69 The word “necessary” generally relates to a purpose. Often, as in the present case, it is used to limit an exception to a general rule. The general rule will also serve some purpose or social function of the law. It will often be appropriate to assess the means chosen to give effect to the exceptional circumstance against the degree of intrusion on the purpose or function of the general rule. For example, the General Agreement on Tariffs and Trade 1947 (GATT) prohibits measures which discriminate against goods from a foreign country. There are exceptions, for example, for measures “necessary to protect public morals” and “necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement …”: GATT, Article XX (a) and (d). This language has been discussed on a number of occasions by the Appellate Body of the World Trade Organisation. In a recent report entitled China – Audio Visual Entertainment Products (WT/DS363/AB/R) (19 January 2010), referring to an earlier decision in relation to Article XX (d), the Appellate Body said, at [251]:

“We recall the Appellate Body’s finding, in Korea – Various Measures on Beef , that the term ‘necessary’ in the abstract, refers to a range of degrees of necessity. The Appellate Body explained that determining whether a measure is ‘necessary’ involves a process of weighing and balancing a series of factors that prominently include the contribution made by the measure to secure compliance with the law or regulation at issue, the importance of the common interests or values protected by that law or regulation and the accompanying impact of the law or regulation on imports or exports. The greater the contribution a measure makes to the objective pursuit, the more likely it is to be characterized as ‘necessary’.”

70 It is also clear that a purposive approach is to be preferred to a logical approach. Thus, because there are several mechanisms available to achieve a particular end is not a reason for saying that none is necessary. If all are available, it is necessary to select one to achieve the identified end; it will, however, not be “necessary” to choose one which is more intrusive on the general principle than another which promotes the purpose of the exception with a proportionately lesser intrusion on the general principle.

71 When used in the Evidence Act, the term “necessary” connotes a higher hurdle to surmount than that which is ‘helpful’, ‘convenient’ or ‘desirable’, but does not require absolute necessity, in the sense of being the sole means of proof. Whether the exception is satisfied in a particular case may need to take account of the purpose or purposes underlying the general exclusion and the purpose of the exception.

72 The principles underlying the exclusion of opinion evidence under the general law and the purpose of the statutory reform have been examined in various authorities, including the judgments of Sackville J in Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT (1998) 154 ALR 527 at 530-531 and of White J in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, each referring to the Australian Law Reform Commission, Report No 26, Evidence (1985) at pars 738 ff. The Report (par 740) stated that the reform reflects “the distinction between opinion based on the witness’ perception and mere uninformed speculation”, a distinction which is encapsulated in s 78(a). The Report considered whether it would be sufficient if the evidence were “helpful either to the eyewitness in giving a clear statement or to the trier of fact in determining an issue” and rejected the standard of “helpfulness” as “too low”. The higher standard was chosen to ensure that witnesses “give evidence as closely connected to their original perception as is possible to minimise inaccuracy and encourage honesty”.

73 Bearing in mind that the Evidence Act provides a separate mechanism for regulating evidence which is unfairly prejudicial, misleading or confusing, or which could result in time wasting (ss 135, 136 and 137), that which is ‘necessary’ should be understood as subject to a purposive interpretation, so that it will be effective, in practical terms, to permit the admission of non-expert opinion evidence which will have probative value.

74 Admission of the ambulance report was the only means of obtaining relevant evidence as to the cause of the injuries, without calling the ambulance officers. The failure of the appellant to take the latter step must be assessed in the context of the following considerations:

(a) the expense involved in locating, taking a statement from and obtaining evidence from the officers in person;
(b) the likelihood that the officers would have any independent recollection of the events in question, which had occurred five years before the date of the trial, and
(c) the likelihood that, upon reading their original report, their recollections would be refreshed in a material way.

75 No such evaluative judgment was undertaken by the trial judge and it is necessary for this Court to address the question for itself. In my view the cost of obtaining evidence from the ambulance officers, bearing in mind the size of the claim, the limited likelihood of the officers having any independent or refreshed recollection of detail which would assist the Court, combine to demonstrate that, in a practical sense, it was not unreasonable to rely upon the contemporaneous document. Accordingly, it was, in the relevant sense, necessary, to admit the document in order to obtain evidence of the perceptions of the ambulance officers about the cause of the injury. By way of illustration, there is a level of doubt about the opinion identified by use of the question mark at the beginning of the line in the report. The likelihood that, if called at trial, either of the officers would have been able to give any useful evidence as to the degree of uncertainty which attached to the opinion at the time, is remote.

76 For these reasons, the evidence should have been admitted. It is material which can be assessed by this Court on an appeal by way of rehearing.

Inference as to cause of injuries

77 The factual question requiring resolution was whether the appellant incurred his undoubted injuries from a fall caused by tripping or stepping over the lip of the vertical side of a concrete drain in open parkland. The trial judge, Ainslie-Wallace DCJ, having described the surrounding circumstances concluded at [43]:

“I am satisfied that the wall, by reason of it being low to the ground, that its edge was partially obscured by plants growing on the ground against it, that it was within the contour of the slope and the lighting in the park … created a hazard for people walking across the park at night. The wall would not readily be seen by a sober person taking care for his or her own safety. A drop of about 1.5 metres from the wall would be totally unexpected to someone coming on it at night.”

78 After referring to the statement of “general principles” in s 5B of the Civil Liability Act 2002 (NSW), her Honour concluded at [56]:

“It is entirely foreseeable that the wall, which is close to the ground and which conceals a considerable drop on the other side would pose a risk of injury to a person walking in the park at night. That a person might fall heavily on to the concrete below the wall and be seriously injured is certainly foreseeable.”

79 After referring to other matters relevant to the inquiry, her Honour concluded in relation to liability:

“[61] These matters persuade me that the foreseeable risk of harm to a person from falling over the wall while in the park at night was one which required reasonable steps by the council to avoid. In this case it was as simple as erecting a fence on the uphill side of the wall which, from the photographs, make the presence of the wall immediately apparent. In coming to this decision, I take into account that there was a clear utility in having the drain in the park as can be seen from photographs taken of the drain after rain.
[62] I am satisfied that the defendant, in not taking any steps to avoid the risk of injury, was in breach of its duty of care to the plaintiff.”

80 Her Honour then noted, under the heading “Causation”, that in order to succeed the plaintiff had to satisfy the Court that his injuries were caused “when he tripped or stumbled over the low wall and fell onto the concrete drain below”: at [63].

81 The appellant had no memory of the events of that night: he was unable to describe how he came to the position in which he was found. Nor did anyone else observe how he came by his injuries. That, of course, is not fatal to his claim. The relevant inferences may be drawn from the surrounding circumstances, proved by admissible evidence. Such a case is sometimes described, though not particularly helpfully, as one involving circumstantial evidence.

82 Where a fact is not known, the burden lying on the plaintiff and the ways in which he or she may fall short have been variously described in the cases, of which the most well-known were referred to by the trial judge and by the President in the earlier judgment, including Bradshaw v McEwans Pty Ltd (unrep, HCA, 27 April 1951); Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358; Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480-481 and Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305: see Jackson v Lithgow City Council [2008] NSWCA 312 at [9]-[13]. For present purposes it is sufficient to say that the plaintiff could not succeed unless the Court was affirmatively satisfied that the necessary facts were established as being more probable than not. References to guesswork, speculation and conjecture may be apt to describe a conclusion which falls short of that state of satisfaction, but do not assist in identifying any particular process of reasoning. As a corollary of the correct approach, it must follow that the mere fact that two inferences are available and one seems more probable than the other will not entail success for the plaintiff, unless the preferred inference is itself considered by the Court to be more probable than not.

83 As a matter of logic, the last conclusion may sound counterintuitive. If that is so, it is because of an in-built assumption that the universe of possibilities is limited to two, each of which is defined with a degree of precision. If such an assumption is valid in some rare case, it is certainly not valid in the present case. The possibilities encompass a number of circumstances, including the direction from which the plaintiff approached the drain, and the time at which he did so. Nor are the logical possibilities to be reduced to two by a reiterative process of eliminating the least probable of a greater number, until only two are left. The lack of precision may be illustrated by reference, in the present case, to various minor, but imaginable, variations as to the mechanism by which the appellant found himself at the bottom of the drain and by reference to the absence of any definite line between a time when it was dark and a time when it was sufficiently light for a person exercising reasonable care to see the drain.

84 The trial judge considered that there were “a number of competing inferences which reasonably arise from the same facts”: at [75]. She concluded:

“[76] On the evidence of this case I am unable to find that the conclusion that the plaintiff fell off the wall was more likely than the conclusion that he stumbled down the sloping side of the drain or was standing on the wall and lost his balance. It follows that the plaintiff has failed to established that the defendant’s breach of its duty of care caused his injuries.
[77] It was argued that there was no evidence from which the court could conclude that the plaintiff was in the park when it was dark rather than later in the morning when, presumably it was lighter and the drain was visible. There is some force in that argument. Although the evidence of Ms Spurling was that the plaintiff left their house at about 3.30am, there is no evidence which would permit a finding that he approached the drain when it was dark, rather than at some later time when it was lighter. The absence of this evidence would also lead me to a conclusion that the plaintiff has not proved that his accident occurred because he did not see the wall and the drain in the dark at thus fell over the wall and was injured.”

85 Dealing first with the mechanism by which the appellant reached the position in which he was found, it would be relevant to know whether he walked through the park regularly, if so the direction he took, or the point in his walk which he had reached on the occasion of his injury. It might also be relevant to know where the dogs were at the time of the accident. However, nothing is known in regard to these factors. The relevant inference must be divined from the outcome, as to which the following elements might assist:

(a) the severity of the injuries;
(b) the nature of the injuries;
(c) the position of the appellant when discovered;
(d) markings on the concrete, and
(e) the position of dislodged belongings, and
(f) the configuration of the area.

86 It is convenient to deal together with the severity and nature of the injuries, (a) and (b). These were the subject of numerous medical reports and are not in dispute. They are sufficiently described by her Honour in discussing the issue of damages at [81]:

“There was no dispute that the plaintiff suffered a very serious closed head injury. He remained in post-traumatic amnesia for 23 days after the accident, accepted to be indicative of a very serious traumatic brain injury. The plaintiff suffered from head injuries, a fractured right wrist and a broken front tooth. The head injury was to the right side and there was bruising to the right side of his face. The plaintiff was noted to have had a haemorrhage from the nose and a haematoma to the right eye. There was tissue swelling around the right orbit of the eye and a probable fracture of the floor and medial wall of the right orbit. He had a small abrasion to the left knee and a 2 centimetre abrasion to the right knee. The ambulance report noted that his extremities were cold but his trunk was warm.”

87 The seriousness of the superficial facial injuries is revealed in the photographs tendered in evidence. In relation to the brain damage, Dr Conrad noted in a report of 3 November 2005 that “CT scans showed considerable brain damage with haemorrhagic contusions of right frontal lobe and temporal lobes”: at p 1. He described the plaintiff as having “sustained a very severe head injury, associated with obvious organic brain damage”: Report, p 2.

88 The Court was not assisted with any useful expert evidence as to the nature of a fall onto concrete which might have achieved that result. However, commonsense would suggest that injuries of such severity are more likely to be caused by a fall from 1.5 metres than by stumbling when seeking to traverse the sloping wall of the drain.

89 Dealing together with (c) and (d), the appellant lost both blood and urine at the time of the injury, the location of which is revealed in the photographs tendered in evidence. A stained area was approximately 2.7 metres from the foot of the vertical wall. Although the evidence is sparse, it appears that the dark stain was the result of blood, which, it may reasonably be inferred, came from the appellant’s face and head. If the appellant fell from the wall, it would appear that the fall was not directly down, but forward, so that he came to rest for a period sufficient to allow the pooling of blood at the point of the stain, approximately a metre beyond his body length from the wall. (While the wall was 1.5 metres high, the ground sloped away just in front of the wall so as to create a drop of 1.9 metres from the top of the wall to the blood stain: report of William Bailey, mechanical and biomedical engineer, p 10.) While Mr Bailey suggested that the distance from the wall was inconsistent with the appellant having tripped over the wall and fallen, no attempt was made to explain why the staining was thought to be consistent with falling on the sloping sides of the drain, which appear to have been further away from the stain than was the wall. On the other hand, the position of the stain suggested that, if the appellant did fall over the wall, he did so whilst moving down the hill, rather than while standing still and losing his balance.

90 In relation to the (e), there appear to have been some personal belongings, including the dog leads, deposited on the ground a metre or so beyond the blood stains. Superficially, that would suggest an unexpected fall, with the leads, held in his hand, being projected forward. However, little weight can be given to that evidence. For example, although it appears likely that the dogs were off the lead at the time of the accident, as they were found off the lead when the appellant was discovered, it is difficult to know exactly how the leads would have come out of his grip, assuming that he was holding them in his hand when he fell. It is quite possible that they were dislodged later, possibly by a an ambulance officer. It is also possible that they were moved from their original position before the photographs were taken. The evidence is silent as to these matters. It is not possible to obtain much assistance from the position of the leads.

91 A further factor, (f), is the configuration of the drain. The vertical wall was at its higher end and extended for a length which does not appear to have been identified in the evidence but which the photographs and measurements in evidence suggests was about 10 metres. The stains appear to have been roughly in the middle of the drain, which had sloping sides. At the lowest point in the vicinity of the accident, the drain may have been almost two metres deep. One side of the concrete drain appears to have been slightly higher than the other, or at least the wall of the drain on that side was somewhat steeper than on the other. On the south side, the slope was relatively shallow. On the north side, the slope was steeper, at the lip, but quickly became similar to the shelving on the other side. The position of the blood stain would appear to be some 4-5 metres from the relatively steeper slope on the north side of the drain. If the appellant did not fall from the vertical wall, it would seem that he must have stumbled going down the steeper slope, heading across the drain from north to south. If he did that, he was heading away from his home. Assuming he did not see the drain (which would have required a deviation of only a few metres from his assumed direction to head above the wall) he would have presumably stumbled for several metres before losing his footing completely and falling. It is not impossible that he would have fallen in a manner which resulted in him landing on his face, but it is unlikely. The nature of the injuries are more consistent with an unprotected and unanticipated fall from a height greater than body height.

92 Disregarding the ambulance officers’ report, I would infer that the appellant was more likely to have fallen from the wall than to have stumbled down the sloping side of the drain, contrary to her Honour’s finding at [76]. Further, because of the distance of the stain from the top of the wall, it is more probable that he fell over the wall in the course of his movement down the hill rather than fell when standing on the wall and losing his balance. Again, that conclusion is inconsistent with her Honour’s finding at [76].

93 On a reconsideration of the material in evidence at trial, and again disregarding the ambulance officers’ report, I would have been comfortably satisfied that, on the probabilities, the appellant fell over the wall when moving down hill, and without seeing the drain. (That, I accept, is inconsistent with the reasoning of the President recorded in the first judgment, with which I agreed.)

94 My conclusion is confirmed by the ambulance officers’ report. The critical line in the section headed “Patient History” is -

“? Fall from 1.5 metres onto concrete”.

95 I would be satisfied on the probabilities that this constituted an inference drawn by the ambulance officers who signed the report, based on their observations when they attended at the scene of the incident at 7.09 on the morning of 18 July 2002. I agree with the President that the opinion so expressed is unlikely to have been based on anything said by the bystanders, who found the appellant. I would be comfortably satisfied that the opinion was based on the observations of the physical position of the appellant, his state of consciousness, the unlikelihood that he had moved far voluntarily or involuntarily, the existence of the stain (which may have suggested to them that he had been in the same position for a period of time), the nature of his injuries as they perceived and recorded them and the surrounding environment.

96 I do not read the document as posing a question: I would treat the question mark, coming at the beginning of the line (not the end) as indicating a degree of uncertainty or doubt. It is not possible to be sure how great their doubts or uncertainties were, other than to say that they nevertheless deemed the opinion worth recording and did not suggest any alternative.

97 The cause of the injuries would not have been unimportant to the ambulance officers. They knew that the appellant had suffered a significant head injury from his level of consciousness, the observable superficial injuries, his response to stimuli and his Glasgow Coma Score. An assessment of the appellant’s condition by relevant medical officers at the hospital, particularly in relation to the potential seriousness of the head injury, might well take into account the cause of the injury. A record of the most likely cause was therefore, in all probability, a matter of some significance to the ambulance officers who prepared the report.

98 That report therefore gives significant additional support to the view that a fall from the wall, in the manner described above, was not merely more likely than other competing possibilities, but was the probable cause of the injuries.

99 I do not obtain assistance from the second Ambulance Service document headed “Retrieval record”. That document is inaccurate in a number of respects. It stated that the appellant was found at 7.20am, which was an approximate time and differed from that recorded by the ambulance officers who attended at the scene. It also described the appellant as “unconscious”, which appears to have been less precise than the assessment of the ambulance officers at the scene. The reference to “approx 1 and half m drop from edge” may well reflect information supplied in the first report, but it gives it no greater credibility or weight. It is not necessary to rely upon the line, “police investigated site – no evidence of fight”, as the possibility of a fight was not given serious consideration by the trial judge and was not relied upon by way of notice of contention.

100 There remains a question as to the time of the accident. The trial judge was satisfied that the top of the wall at the head of the wide drain was hazardous and that the Council was in breach of its duty of care to persons crossing the park at night in leaving it in its unprotected condition.

101 The fact that the plaintiff fell over the wall without seeing it, as concluded above, does not necessarily mean that the breach of duty was the cause, or the sole cause of the injuries suffered.

102 The ambulance report indicates that a vehicle was “booked” at 6.57am. The ambulance was on the scene within 10 minutes. The officers recorded that the plaintiff’s extremities were “cold to touch” but his trunk “warm”. Perhaps because this description was too imprecise to be of significance, no medical evidence was called to indicate how long he may have been lying in the drain, before he was discovered.

103 On 18 July 2002 the sun rose in Lithgow at 7am. This time was not referred to in the evidence, but was referred to in submissions and was a matter of which her Honour could take notice. Although the plaintiff was discovered before sunrise, it does not necessarily follow that the accident occurred in the dark. On the other hand, it was agreed that the plaintiff had set out with the dogs at 3.30am, when there was likely to have been some three hours of darkness, before significant pre-dawn lightening.

104 There was evidence from the father of his partner (Mr Peter Spurling) that the weather was “a bit on the cold side and it was a clear night”: Tcpt, 28/03/07, p 192. It is not in dispute that the plaintiff had drunk a significant amount of alcohol on the previous evening and night and had been noisy when he left his home to go for a walk with the dogs. Given the period of time for which he away, and the absence of any suggestion that he had visited any person in that time, it is more likely that the injury occurred whilst it was dark than after it had started to become lighter. Further, given the danger involved in the construction of the drain, with the lip being concealed by plants and there being no warning or fence around it, the inference that it was dark when the accident occurred obtains support from the circumstances of the accident, as found above.

105 Further, the likelihood that the plaintiff would have been somewhat less inebriated after walking with dogs on a cold clear winter’s night in Lithgow, after two or more hours, also supports the inference that the accident occurred whilst it was dark.

106 In my view, it was incorrect for her Honour to say that there was “no evidence which would permit a finding that he approached the drain when it was dark, rather than at some later time when it was lighter”: at [77]. Although there is a paucity of evidence from which to draw an inference, in my view the circumstances set out above support the inference that, on the probabilities, the fall occurred during hours of darkness.

Conclusions

107 I agree with the President that the first ambulance service report, prepared by the officers who attended at the scene of the injury, was admissible. Because I obtain no assistance from the later “retrieval record” it is not necessary for me to address its admissibility.

108 On further consideration of the evidence relating to causation, I am satisfied, on the probabilities, that the plaintiff suffered his injuries in the manner he claimed. I also infer that, on the probabilities, the accident occurred before it was sufficiently light to allow a person taking reasonable care for his safety to perceive the drop in the land ahead.

109 Accordingly, I would agree with the orders proposed by the President.

I agree with the orders proposed by Allsop P for the reasons which he has given.

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