Lithgow City Council v Jackson [2011] HCA 36 28 September 2011 S66/2011
ORDER
1. Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of New South Wales dated 11 June 2010 and in its place order that:
(a)the appeal to that Court be dismissed with costs, including costs of and incidental to the first appeal to that Court (40614 of 2007); and
(b)the respondent, Craig William Jackson, pay the costs of the appellant, Lithgow City Council, of the special leave application to the High Court of Australia in the matter S569/2008.
3. The respondent pay the appellant's costs in this Court.
On appeal from the Supreme Court of New South Wales
Representation
S R Donaldson SC with S E McCarthy for the appellant (instructed by DLA Piper Australia)
A S Morrison SC with D W Elliott for the respondent (instructed by Gerard Malouf & Partners)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lithgow City Council v Jackson
Evidence – Admissibility – Opinion evidence – Section 78 of Evidence Act1995 (NSW) ("Act") provided that rule excluding evidence of opinion does not apply where "opinion is based on what the person saw, heard or otherwise perceived about a matter or event" and evidence "is necessary to obtain an adequate account or understanding of the person's perception of the matter or event" – Respondent found unconscious and injured in drain – Respondent conceded appellant only liable if respondent fell from vertical retaining wall – Ambulance record contained representation "? Fall from 1.5 metres onto concrete" – Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.
Evidence – Admissibility – Hearsay evidence – Business records exception under s 69 of Act – Representation was hearsay evidence in business record – Whether representation must also comply with s 78.
FRENCH CJ, HEYDON AND BELL JJ. This is an appeal from the second of two decisions of the Court of Appeal of the Supreme Court of New South Wales. It raises two groups of difficult issues in relation to the law of evidence. The first concerns the reception of lay opinion evidence in business records. The second concerns the use of circumstantial inference to establish causation.
The facts in outline
On 18 July 2002, the respondent, Craig William Jackson, was living at 7 Andrew Street, Lithgow with Naomi Spurling. He was 26 years old.
At about 3.30am on 18 July 2002, the respondent left home after an argument with Naomi Spurling. The trial judge found, after analysing conflicting evidence, that the respondent was "at least moderately intoxicated." He was accompanied by his two dogs, found…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Lithgow City Council v Jackson [2011] HCA 36
Case
[2011] HCA 36
Decision Date
CaseChat Overview and Summary
Lithgow City Council v Jackson concerned an appeal to the High Court of Australia regarding the admissibility of evidence and the establishment of causation in a negligence claim. The respondent, Craig William Jackson, was found unconscious and severely injured in a drain. His case depended on proving he fell from a specific vertical retaining wall, a fact he lacked direct recollection of due to his injuries and intoxication at the time. The central piece of evidence in dispute was a notation in an ambulance service record stating, "? Fall from 1.5 metres onto concrete," which the respondent argued established he fell from the retaining wall.
The High Court was required to determine two primary legal issues. Firstly, whether the notation in the ambulance record constituted admissible opinion evidence under section 78 of the Evidence Act 1995 (NSW), which allows opinion evidence based on a person's perception if necessary for an adequate understanding of that perception. Secondly, the Court had to consider whether, even if the notation was inadmissible, other circumstantial evidence was sufficient to establish causation, as argued by one of the judges in the Court of Appeal. A further, implicit issue was the admissibility of the notation as a business record under section 69 of the Act, and whether it also needed to satisfy section 78.
The High Court allowed the appeal, finding that the Court of Appeal had erred in admitting the impugned representation. The Court noted that the notation contained a question mark, indicating uncertainty, and that the Court of Appeal had been misled by defective appeal books which omitted this crucial detail. The High Court held that the notation, even if considered a business record, did not meet the requirements of section 78 of the Evidence Act 1995 (NSW) as it was not demonstrably based on the ambulance officers' direct perception or necessary for an adequate account of their perception. Furthermore, the Court found that the other circumstantial evidence, when properly assessed, was insufficient to establish that the respondent fell from the vertical retaining wall, which was a necessary element of his claim. Consequently, the appeal to the Court of Appeal was dismissed with costs, and the respondent was ordered to pay the appellant's costs in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of New South Wales dated 11 June 2010 and in its place order that:
(a) the appeal to that Court be dismissed with costs, including costs of and incidental to the first appeal to that Court (40614 of 2007); and
(b) the respondent, Craig William Jackson, pay the costs of the appellant, Lithgow City Council, of the special leave application to the High Court of Australia in the matter S569/2008.
3. The respondent pay the appellant's costs in this Court.
Background
Background to the litigation
FRENCH This is an appeal from the second of two decisions of the Court of Appeal of the Supreme Court of New South Wales. It raises two groups of difficult issues in relation to the law of evidence. The first concerns the reception of lay opinion evidence in business records. The second concerns the use of circumstantial inference to establish causation. The facts in outline On 18 July 2002, the respondent, Craig William Jackson, was living at 7 Andrew Street, Lithgow with Naomi Spurling. He was 26 years old. At about 3.30am on 18 July 2002, the respondent left home after an argument with Naomi Spurling. The trial judge found, after analysing conflicting evidence, that the respondent was "at least moderately intoxicated." He was accompanied by his two dogs, found by the trial judge to be "large" and "fierce". Not far from the respondent's home to the southeast was an area of parkland called Endeavour Park. Endeavour Park was bounded by the Great Western Highway and Amiens Street. The park sloped generally downward from the Great Western Highway to Amiens Street in a roughly east-west direction. There was a large, shallow concrete drain which ran in the same east‑west downhill direction at the Amiens Street end of the park. At the western end the drain had a vertical face topped by a small retaining wall projecting at different points between 90 and 280mm from the grass, partially concealed by foliage. The distance from the top to the bottom of the vertical face was 1.41m. In contrast, the northern and southern sides were not vertical but sloped down, although the distance from top to bottom was approximately the same. Shortly before 6.57am the respondent was found lying badly injured in the drain. There was a pool of dried blood and urine 2.69m from the vertical face. Two dog leads were found near the respondent. The two dogs, with the fidelity which is proverbially attributed to those creatures, were at their master's side, and indeed their ferocious expressions of loyalty hampered attempts to give him aid. The plaintiff's case as opened at the trial and as presented in the appeal to this Court was that he fell by tripping from the small retaining wall at the top of the western vertical face of the drain, not from one of the sides. The respondent concedes that if he failed to establish that, his entire case would fail. It is not now in dispute that the respondent's injuries were caused by falling either from one of the sides or from the western vertical face of the drain. Other possibilities ventilated at the trial, such as an attack by another person, were not pressed in this Court. The respondent's injuries deprived him of recollection of how he came to be injured. This creates a serious obstacle in his path. A further obstacle in his path is created by the absence of any other evidence on that subject, apart from that already indicated, save a statement in a record of the Ambulance Service of New South Wales made by an ambulance officer or officers summoned to assist the respondent. The statement, which appeared among various representations on a different subject, namely the respondent's injuries, was: "? Fall from 1.5 metres onto concrete" ("the impugned representation"). The respondent contends that the impugned representation establishes that he fell from the vertical face of the drain. The trial judge
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HEYDON AND BELL JJ
GUMMOW J
CRENNAN J
The appellant sought special leave to appeal to this Court. It emerged that the Court of Appeal had assumed that there was no question mark at the start of the impugned representation. The Court of Appeal had been misled into that assumption because the appeal books which the parties had prepared for the appeal to that Court had been defective in truncating the question mark. This Court granted special leave, allowed the appeal and remitted the matter for further hearing in the light of the accurate trial record. The second Court of Appeal decision In the second Court of Appeal decision, Allsop P and Grove J, after construing the impugned representation as a "less positive" but admissible opinion, adhered to their original conclusion that the respondent had proved causation[6]. Basten JA agreed on the admissibility question for somewhat different reasons[7]. He also held that even without the impugned representation the evidence established a conclusion of causation but that the impugned representation confirmed that conclusion[8]. [6]Jackson v Lithgow City Council [2010] NSWCA 136 at [20]-[36]. [7]Jackson v Lithgow City Council [2010] NSWCA 136 at [51]-[76].[8]Jackson v Lithgow City Council [2010] NSWCA 136 at [77]-[106].The issues in this Court By that unusual route two issues are presented in this Court. The first is whether the Court of Appeal in its second decision was correct to hold that the impugned representation was admissible. The second is whether, even if it were incorrect, the conclusion that causation is established can be supported, as Basten JA held, by other evidence. Although the parties did not approach the matter in this way, there is also potentially a third issue: even if the impugned representation is admissible, does it, taken with other evidence, establish causation? That is a potential issue because, even if the impugned representation is admissible, its probative value is highly questionable for reasons which will be seen below. But since both of the first two questions should be answered in the negative for reasons stated below, the third question does not arise.The context of the impugned representation The document recording the impugned representation was a "Patient Healthcare Record". It was a form divided into various parts. In the part headed "Chief Complaint" appeared the following words, as transcribed by Allsop P: "Decreased level of consciousnessOE pt responding to painful stimuli, haematomaTo RI abrasions to face & haemorrhage [Indistinct] nose. Extremities cold to touch, trunk [indistinct]Pt combative throughout [Rx or Pt] incontinent of urine."In the part headed "Patient History" appeared the words: "Found by bystanders — parkland? Fall from 1.5 metres onto concreteNo other Hx"."Hx" means "history". The document was signed by two persons, J Goodwin (described as driving) and M Penney (described as officer treating). Neither gave evidence at the trial. There was no evidence as to their health or whereabouts at the time of the trial or as to their capacity to give evidence at the trial. There was no evidence about whether the impugned representation was made by both, or by only one, and if so, which. However, below it will be assumed that it was made by both. Nor was there evidence about whether the impugned representation was based on something the makers of the statement had been told, or on a matter from which the makers drew an inference, and, if so, what that matter was. The Court of Appeal, however, took the view that there was no reason to infer that the impugned representation was a conclusion from what bystanders had said. In their opinion it was a conclusion from what the ambulance officers could perceive. The problem of admissibility under s 69
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HEYDON AND BELL JJ,
GUMMOW J,
CRENNAN J