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 2010JUDGMENT 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…
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- AGLC
- Jackson v Lithgow City Council [2010] NSWCA 136
- Case
- [2010] NSWCA 136
- Decision Date
CaseChat Overview and Summary
The appeal before the Court of Appeal of New South Wales concerned a dispute between the appellant, Jackson, and the respondent, Lithgow City Council. The matter had been remitted from the High Court for a rehearing of the appeal after the first hearing proceeded on an inaccurate record of evidence, specifically due to a missing question mark symbol. The central issue revolved around the probative force of evidence, particularly notes made by ambulance officers.
The court was required to determine several legal issues. These included the admissibility and relevancy of the ambulance officers' notes as business records under section 69(1) of the *Evidence Act 1995* (NSW), considering whether the hearsay rule applied and if the representation within the document was based on information from someone with personal knowledge. Additionally, the court had to consider the admissibility of opinion evidence under section 78 of the *Evidence Act 1995* (NSW), specifically whether the opinion related to the aftermath of an incident and the meaning of "necessary" in that section, which does not require absolute necessity. Finally, the court needed to assess whether, on the balance of probabilities, the appellant suffered his injuries as described in the ambulance officers' notes, addressing the issue of causation in negligence.
The court reasoned that the ambulance officers' notes were admissible as business records, as the hearsay rule did not apply because the maker of the document was providing information based on the direct observations of the ambulance officers, who could reasonably be supposed to have had personal knowledge of the asserted facts. The court also found that the opinion evidence was admissible, as the term "necessary" in section 78(b) did not connote absolute necessity and the section encompassed perceptions of the aftermath of an incident. Ultimately, the court concluded that the appellant had established causation on the balance of probabilities. The appeal was allowed, the District Court's orders were set aside, and judgment was entered for the plaintiff with costs.
The court was required to determine several legal issues. These included the admissibility and relevancy of the ambulance officers' notes as business records under section 69(1) of the *Evidence Act 1995* (NSW), considering whether the hearsay rule applied and if the representation within the document was based on information from someone with personal knowledge. Additionally, the court had to consider the admissibility of opinion evidence under section 78 of the *Evidence Act 1995* (NSW), specifically whether the opinion related to the aftermath of an incident and the meaning of "necessary" in that section, which does not require absolute necessity. Finally, the court needed to assess whether, on the balance of probabilities, the appellant suffered his injuries as described in the ambulance officers' notes, addressing the issue of causation in negligence.
The court reasoned that the ambulance officers' notes were admissible as business records, as the hearsay rule did not apply because the maker of the document was providing information based on the direct observations of the ambulance officers, who could reasonably be supposed to have had personal knowledge of the asserted facts. The court also found that the opinion evidence was admissible, as the term "necessary" in section 78(b) did not connote absolute necessity and the section encompassed perceptions of the aftermath of an incident. Ultimately, the court concluded that the appellant had established causation on the balance of probabilities. The appeal was allowed, the District Court's orders were set aside, and judgment was entered for the plaintiff with costs.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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