Lithgow City Council v Jackson

[2011] HCATrans 115

[2011] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S66 of 2011

B e t w e e n -

LITHGOW CITY COUNCIL

Appellant

and

CRAIG WILLIAM JACKSON

Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 MAY 2011, AT 2.17 PM

Copyright in the High Court of Australia

MR S.R. DONALDSON, SC:   If it please the Court, I appear with my learned friend, MR S.E. McCARTHY, for the appellant.  (instructed by DLA Piper Australia)

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friend, MR D.W. ELLIOTT, for the respondent.  (instructed by Gerard Malouf & Partners)

FRENCH CJ:   Yes, Mr Donaldson.

MR DONALDSON:   Your Honours, this is an appeal pursuant to leave granted on 11 February 2011 from a judgment of the New South Wales Court of Appeal of 11 June 2010, which is at page 672 of the appeal book.  That decision was a judgment in a rehearing of an appeal which had been decided on 24 November 2008, and that is at page 591 of the appeal book.

The proceedings involve a claim for personal injuries by the gentleman who was injured in a park in Lithgow at night time and the principal issue on appeal was whether or not the plaintiff had discharged the onus of establishing that he had suffered injuries in the manner in which he contended.  The manner in which he contended is most readily identified at page 27 of the appeal books, in the opening of the case for the plaintiff, at about line 30 where Mr Elliott, who appeared for the plaintiff, said that he would ask the trial judge to infer that the plaintiff –

tripped off the brick course wall at the top, projected himself down into the drain falling a height of about 1.8, 1.9 metres, struck his right arm fracturing his right wrist . . . and knocking himself utterly unconscious –

Now, an understanding of what was being referred to there is also facilitated by photos which appear at page 486 of the appeal book.  Your Honours will see there at line 20, figure 6 on the left‑hand side is the drain and that was the subject of observations in opening, and the wall that was the subject of the observations in opening is the end or head wall of the drain, not the sloping sides of the drain which can be seen at either end of the wall.  There are similarly useful photographs at page 466 of the appeal book which show the end wall and the side walls of the drain, the plaintiff’s case being that tripped over a course of bricks on the head wall and fell into the drain.

It is also, in order to understand the factual background, perhaps helpful to have a look at the map on page 511 of the appeal books which indicates the location of Endeavour Park, which is about line 34 and towards the left‑hand side of the page on the eastern side of the Great Western Highway, and there is an arrow indicating the approximate location of the concrete drain that was depicted in the photos. 

At the top of the map 7 Andrew Street, Lithgow is identified, or the location of 7 Andrew Street, Lithgow and that is the plaintiff’s residence.  On the night in which he was injured he departed his residence in the early hours of the morning, in what the trial judge described as at least a state of moderate intoxication, with his two dogs, and no one knows what happened between the time that he departed his home and when he was found a little before seven o’clock the following morning in the drain in the park. 

The trial judge found, and this is at paragraph 76, page 563 of the appeal books, on the question of causation:

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 establish that the defendant’s breach of its duty of care caused his injuries.

Just pausing there, the breach which her Honour found and which is not controversial is that the head wall of the drain constituted a danger to people walking in the park and failing to do something to make the drain more visible or otherwise ameliorate the danger was a breach of a duty of care to people who might be using the park at night.  The trial judge further found at paragraph 77, on 564:

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 –

She concludes in the last sentence that the absence of evidence in relation to time led her:

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 and thus fell over the wall and was injured.

Now, there was an appeal to the Court of Appeal, as I said, principally on the question of whether the trial judge erred in finding that the onus of proving the cause of the accident had not been satisfied and the Court of Appeal decided in the 2008 appeal that the onus had been satisfied primarily because of an ambulance officers’ note, being a note of the officers that attended the plaintiff when he was first found in the drain.  The relevant passages are at 610 and 612 of the appeal books, paragraph 49 which appears in the judgment of the President of the Court of Appeal with whom the other members of the court agreed.  Actually, I should go back.  Paragraph 37 on page 607 sets out the text of the relevant ambulance officers’ note:

Found by bystanders – parkland

Fall from 1.5 metres onto concrete.

No other Hx

The abbreviation “Hx” was taken to mean history.  Then at paragraph 49 the conclusion was, the court stated:

Without the note of the ambulance officer read in the way that I read it, it would be difficult to draw an inference as to what happened.  With the note of the ambulance officers, the balance of the evidence being consistent with such a fall, I am prepared to draw the inference that the appellant, walking in an easterly direction (from the west) down the hill, fell over the wall and down on to the concrete striking his wrist and head making him unconscious.

Then at paragraph 56 on page 612:

For the avoidance of doubt, and in deference to the primary judge, if it is not legitimate to use the ambulance officers’ record in the way that I have, I would agree with the primary judge that on the material available it was not possible to infer that the accident happened in the way asserted by the appellant.

GUMMOW J:   Did Judge Ainslie‑Wallace refer to the ambulance report?

MR DONALDSON:   She did not refer to it in the judgment, no.  There was a debate between counsel when an objection was raised and a ruling under section 136 of the Evidence Act was sought and she said she would accede to that application and then made no reference to the note in her judgment and the Court of Appeal observed that the decision was a reflection of a fact, in their view, that she had not taken that note into account.

There was an application for leave to appeal from the Court of Appeal’s decision and when that application for leave was heard it was granted and the appeal was treated as having been commenced instanter and allowed, the reason being that the appeal books had been misprepared and there was a question mark missing from the beginning of the second line which is set out at 37, “Fall from 1.5  metres onto concrete.”  In fact, the note in the ambulance officers’ document read, “? Fall from 1.5 metres onto concrete” and accordingly, the matter was sent back to the Court of Appeal.

At page 676 of the appeal book the learned President at paragraphs 6 and 7 observed that:

the primary judge had rejected the ambulance records . . .  The notice of appeal did not complain about this rejection.

In order to put matters on a proper footing he ordered that “an amended notice of appeal” be filed “to cover the issue of the admissibility of the ambulance records.”  In paragraph 7 he ordered that:

a notice of contention to uphold the view of the primary judge of the inadmissibility of the ambulance records –

should be filed, and those documents are at 662 and 668 of the appeal book.  Now, the conclusion reached by the court in connection with the causation issue the second time around can be found at 679 and 680 of the appeal book in paragraph 19 of the judgment:

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 . . . 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.

Then at paragraph 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 inference of all probative force.  It is to be placed with all 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 ‑ ‑ ‑

GUMMOW J:   We can read all this, you know.

MR DONALDSON:   I am sorry.  Now, turning to the issues in the appeal, we say first of all ‑ ‑ ‑

FRENCH CJ:   Just before you do, there is a summons for enlargement of time in relation to the notice of contention.  That is not opposed, I gather?

MR DONALDSON:    No, your Honour.

FRENCH CJ:   There will be leave to enlarge time and file the notice of contention.

MR DONALDSON:   Your Honours, the issues we seek to raise on the appeal are in summary these.  First of all, we submit that the ambulance officers’ note is not an opinion within the meaning of the Evidence Act, but rather a record of the fact that a fall from a height of 1.5 metres on to concrete was a possibility, as distinct from an opinion that that was the cause of the plaintiff’s accident. 

We submit that if the note cannot be treated as an expression of opinion by the ambulance officers as to the cause of the plaintiff’s accident, then it is not rationally capable of affecting the assessment of probability that the respondent’s injuries were sustained in the manner alleged, and it was not admissible, and neither should have been rejected or an order under section 136 in connection with the relevant line of the record ought to have been made so that it was not received as evidence relevant to the cause of the plaintiff’s accident.

We say that, alternatively, if it is an opinion then it did not fall within the exception to the opinion exclusion or the relevant exception to the opinion exclusion, section 76 of the Act, namely, lay opinions in section 78 and it is common ground and it was the view of the Court that there was no basis for receiving the document as expert opinion.  We submit that it was not lay opinion within the meaning of section 78, within the exception in section 78, and it should have been excluded. 

There are issues in connection with the notice of contention which has been filed.  Our submissions in summary in relation to that are that it is common ground that the court did not misapprehend its task or mis‑instruct itself in connection with the process to be undertaken in drawing inferences from proven facts and that there is no warrant for turning the court’s conclusion, that conclusion being that absent the ambulance officers’ note the onus of proving that the accident occurred in the way that the plaintiff alleged had not been satisfied.

If I can turn, first of all, to the argument as to whether or not the relevant note constitutes an opinion at all, your Honours, we support, with respect, the reading of the note that is evident in the trial judge’s observations when she was dealing with the debate in connection with the tender of the note, and that appears at page 341 of the appeal book at line 45, where her Honour looked at the note and began to read it, and her interpretation was “query fall from”.  Our submission is that in medical notes and related notes, the use of a question mark at the beginning of a sentence such as the one that appears in this note is very commonly a shorthand way of identifying that what is being raised is a query. 

There is also in the context in which that note was made good reason for treating it as a query rather than a conclusion of any description.  The evident purpose of the note, we submit, is so that people who were in some way involved in the management of the patient at a later time would be alerted to a possibility, and we say that falls significantly short of an opinion, let alone an opinion capable of rationally affecting the causation issue.

FRENCH CJ:   You can have an opinion that something, a particular course of events, was possible having regard to what you see, can you not?

MR DONALDSON:   Yes, you can have an opinion as to the existence of a possibility, but “opinion” in this context, in our submission, means an inference drawn from observations, and if the inference was to be a relevant inference in the context of this case, then it had to be an inference as to how the accident happened, not just an inference as to a possibility as to how the accident may have happened.  The danger of receiving evidence in a record without the witness being called, which goes no higher than the recognition of a possibility is, in our submission, clear.  There is no way of understanding or testing whether it was a firmly held opinion or whether it was something which was regarded as a remote possibility, but one which doctors should nevertheless be alerted to, and ‑ ‑ ‑

CRENNAN J:   What if it raises a probability as in construing the question mark as meaning something like “looks like”?

MR DONALDSON:   Your Honour, if that was a proper way to construe the note, then we would have to concede that it was an expression of a relevant opinion.  But the submission that we make is that question mark “fall from wall”, or “fall from 1.5 metres onto concrete”, is properly read as “query”, and the point I was about to make was that the task of people charged with the medical management of this patient and what they might make of the note is vastly removed from the task of the court in seeking to draw a conclusion on the balance of probabilities.  

The approach of doctors to these sorts of unknowns is treat the worst possibility as the likelihood or the fact until it is disproved.  It is a very, very different process to a court undertaking the task of determining whether or not a case has been proved on the balance of probabilities.  So the threshold that this ambulance officer would have required be crossed before he raised this possibility is a vastly different threshold to the one the court was considering.  In those circumstances we say that the admission of the material falls squarely within section 136 as something likely to be prejudicial and of no real evidentiary weight.  Another real issue in connection with the content of the ‑ ‑ ‑

HEYDON J:   Of course, another way of putting it is perhaps this.  A business record is not just admitted as a global thing.  Certain propositions in its statements – and this line with the question mark was, on the respondent’s case, a statement and on your case what you have been describing it as.  Strictly speaking, one approach would have been to have objected to that line, period, without even getting to section 136.

MR DONALDSON:   Yes.  Interestingly, in light of the observations of the President and of the majority in the second appeal, that line was treated as effectively being rejected. 

GUMMOW J:   Which line?

MR DONALDSON:   Which line?  The line which said, “? Fall from 1.5 metres onto concrete”.  It is a distinct line in the ambulance notes.  I should give your Honours the page reference to those notes.  They are not terribly easy to read, but they are at pages 431 and 432.  As is described in the judgment, they are set out and there are various lines set out and this was a distinct line which the Court of Appeal regarded as dealing with the distinct subject matter.

Another difficulty with the suggestion that this note recorded an opinion that was of probative value in relation to the cause of the plaintiff’s accident, and it is important to recall here that some of the competing possibilities included stumbling down the steep albeit not vertical sidewalls and landing heavily in the bottom of the drain and falling off the vertical headwall.  The note says – it does not actually say query fall from headwall or vertical wall or any other wall.  It only says query fall of 1.5 metres onto concrete which could have been achieved both at the end of the drain and the sides of the drain because the height from the base of the drain to the sides was not materially different to the height of the base of the drain to the top of the headwall and the ambulance officer could be taken not to have been making precise measurements of these things.

CRENNAN J:   May I just ask you precisely where the opinion is captured in 431 or 432?

MR DONALDSON:   Yes.  It is at page 431, and it is a very bad copy, I am afraid, but your Honour can read at about three-quarters of the way down the page when it is turned on its side, it says “patient history”.  There is a box entitled “patient history”, you can see a black section.  It is really very difficult to read.

CRENNAN J:   Yes, I now have that, thank you.

MR DONALDSON:   But the second line down, “? Fall from 1.5 metres onto concrete”. 

So a fall from 1.5 metres onto concrete, even if it is regarded as the existence of an opinion, at least of the existence of a possibility, there were three distinct possibilities of falling 1.5 metres onto concrete, one of which was consistent with the case which the plaintiff was setting out to prove and two of which were not.

HEYDON J:   The two that were not were coming from either side.

MR DONALDSON:   Yes.  So that is the first proposition that we put, if this was not to be treated as a statement of an inference drawn by the ambulance officer as to the cause of the accident, then it was not of probative value and it should not have been treated as of probative value.  The second proposition that we put is that even if this is an opinion, it does not fall within the exception in section 78 because it does not satisfy the dual requirements of subparagraphs (a) and (b).  The first thing to note about subparagraphs (a) and (b) is that they draw a distinction between the opinion and the observations or perceptions upon which the opinion is based.  Subparagraph (a) speaks of:

the opinion is based on what the person saw, heard or otherwise perceived –

Subparagraph (b) requires that the –

evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

So it has to be necessary to receive the opinion to understand, or we would submit, better explain, or convey, the observations that were made.  The Court of Appeal observed, and we have no issue with the fact, that there is authority for the proposition that an opinion can be received under the exception in section 78, notwithstanding that the primary observations or perceptions upon which the opinion is based are not disclosed or articulated.  But that does not mean that the failure to disclose or articulate the observations or perceptions upon which the opinion is based will be unproblematic in every case, and we say that in this case it is highly problematic.

FRENCH CJ:   How does it work with the classic case of the statement of an opinion that somebody is drunk or intoxicated?  It used to be called a compendious impression.  But that would be a reflection of the person’s perception of a constellation of features displayed by the person about whom the opinion was expressed.

MR DONALDSON:   Exactly, and another good example is if someone says that the defendant looked horrified or the defendant looked alarmed, those things can be, or the component parts of that observation, can be very difficult to convey or describe accurately and, indeed, an attempt to convey or describe the component parts of an observation of that type may be quite ineffective without stating the ultimate conclusion, and that was the basis of the common law principle permitting the ultimate conclusion to be stated that it was necessary in order to really understand the component observations.

Here, we are dealing with a very different situation because these are not component observations that are incapable of meaningful expression without adding an opinion for a start.  The ambulance officers were not called by anyone, and their note did not identify any of the perceptions or observations upon which their conclusion was based.  They did not say we found the patient lying in a particular orientation in a particular part of the drain, and we observed blood here or bodily fluids there.  None of the primary observations were recorded or conveyed to the court.

Now, in our submission, in the absence of the communication of those primary observations in this case the requirements of section 78 will not be satisfied because there is such a disconnection between the ultimate conclusion and any underlying observations that it cannot be said that the evidence of opinion is necessary to obtain an adequate account of the person’s perception of the matter or event in the relevant sense.  We do not have an account or understanding of the person’s perception of the matter or event.

BELL J:   Even if we did, if the ambulance officer had been called and had given evidence that the body was lying in a certain direction at a fixed distance from the wall and that the body was inert and the body fluids were in a particular location, would it have been open to ask the ambulance officer what in his opinion had led to the body ending up in that position?

MR DONALDSON:   In our submission, no, it would not have because if the evidence of the direct observations had been given the ultimate conclusion in this case would have been entirely unnecessary and, indeed, it would have been trespassing upon the function of the finder of fact to draw conclusions as to which ‑ ‑ ‑

BELL J:   That seems to have been the approach that the trial judge took at appeal book 341, line 45 and following.  It is the passage that you took us to, Mr Donaldson.

MR DONALDSON:   Yes.

BELL J:   If you see her Honour’s responses from that point on, as I had understood it, that was ‑ ‑ ‑

MR DONALDSON:   We would submit that is a fair, with respect, characterisation of her Honour’s position.  Her Honour’s position was complicated a little bit by the fact that she made a number of references to the potential that this line recorded something that was communicated by a bystander, but Mr Campbell had very clearly stated the position that it was potentially a musing or rumination on the part of the ambulance officer, but we would submit that the trial judge’s observation that these were going to be matters for her was applicable to both.

FRENCH CJ:   Now, so far as matters of direct observation are concerned, we have on the record, for example at page 434, apart from the photograph of the drain itself, the position of bodily fluids and the position of the dog leads, I think.

MR DONALDSON:   That is so.

FRENCH CJ:   Then we also have the photographs of the injured man, but not obviously in situ.

MR DONALDSON:   No, and there is other evidence of the injuries that he suffered which could be of some significance in seeking to identify whether the onus had been satisfied.  So that is all there was and that perhaps arises under the notice of contention question, but certainly there was nothing about what the ambulance officers observed that required or could be the subject of supplementation by the expression of this ultimate opinion.  Indeed, the expression of the ultimate opinion would not have really – I might have made this point already – but the expression of that ultimate opinion was both unnecessary and unhelpful in terms of understanding precisely what observations the ambulance officers had made.

The third point and an alternative approach that we take, your Honours, is that if we are wrong about the operation of section 78 in the circumstances of this alleged lay opinion, then in the circumstances of this case the requirement of necessity which is imposed by subsection 78(b) was not satisfied in any event.  The conclusion of the Court of Appeal in substance was that the receipt of the ambulance officers’ note was necessary because the ambulance officers were not called.  That appears from page 682 of the appeal book.

GUMMOW J:   Is there any judicial treatment of this phrase “necessary” in 78(b)?

MR DONALDSON:   Not in the context of section 78(b) that would not ‑ ‑ ‑

GUMMOW J:   It is a very strong word.

MR DONALDSON:   Yes, that is our submission, and in the context that it appears – and I will come to that in a moment – even though there is some flexibility associated with the term in the context that it appears in section 78, in our submission, is that it should be treated as a high burden.  But in any event, the approach of the Court of Appeal at paragraphs 30 and 31, page 682, was that if the ambulance officers had been called, they could have given evidence.  They were not called:

Not being called –

this is paragraph 31 –

the only way to get any account of their perception was to admit the documents and the opinion contained therein.

We would submit that, as I said, whilst it can be accepted that there is some elasticity in an expression like “necessary”, it is important to have regard to the nature of the common law exception which existed and which at least provides some context ‑ ‑ ‑

FRENCH CJ:   One tests the question of what “necessary” means or how it operates I suppose initially in the context of the simple case of a lay witness in the box.  Imagine the ambulance driver were there and the ambulance driver was then asked whether, in his opinion, or whether he had an opinion about how this man had fallen, and then the question would arise is that necessary in order to understand his perceptions, him having presumably previously described the position of the man and being reminded of the photographs of the sink and so forth.  The question is whether it operates any differently when all you have is a rather Delphic statement of – well, let us assume it is an opinion.  Let us assume for the moment.  Forget the question mark. The question is whether the operation of necessity is different in that context, whether you can take account of the fact the person is not called.

MR DONALDSON:   In our submission, that is not the way in which the provision is intended to operate.  It is of relevance, we submit, that the exception to a substantial degree mirrors the common law rule which preceded it and necessity to obtain an adequate account or understanding of a person’s perception was a well‑known concept in the application of the common law principles.  One also has to have regard to the evident purpose of the legislation and the evident purpose of the exclusion.  Your Honours, we submit that the purpose of the exclusion is so that triers of fact base their decisions upon factual material and not the opinions of others.

The evident purpose of the exception is to allow some flexibility in that principle where it is necessary.  It is not a provision which ought to be regarded as dealing with a situation where a witness is unavailable.  Provisions which accommodate the unavailability of witnesses are dealt with in sections 63 and 64 of the Act, for example, and in the business records provisions. 

We submit that it is most unlikely that Parliament intended that the opinion exclusion could be circumvented wherever it was difficult or inconvenient or even impossible to call the maker of an opinion statement in a document because a statement in the document, if it is pure opinion, creates precisely the same mischief as it does in oral evidence and the unavailability of the maker of a statement is not, in our submission, anything which ameliorates the undesirable consequences of receiving opinion evidence in the way that the common law principle did.

So, we submit that “necessary’ is a heavy onus and that it is not intended to provide a means of tendering material where it is inconvenient or impossible to call the maker of a written statement.  If we are wrong about that then in the circumstances of this case the onus introduced by “necessary” was not discharged in any event.  The respondent bore the onus of demonstrating that the evidence fell within the scope of the exception.  The fact that an election was made not to call the ambulance officers does not establish necessity in any of the usual senses of that term and at best it might have been suggested that it was seen as a convenient course.

HEYDON J:   We do know their names, do we?  We know their names because they signed page 431.

MR DONALDSON:   Yes, we do know their names.

HEYDON J:   Was there actually any evidence as to whether they were alive and well and living in Lithgow?

MR DONALDSON:   No, there was no evidence about who they were or whether they were available.  There was no evidence, as I understand it, beyond the appearance of the names on the sheet and no one was even sure who the maker of the statement was.  Justice Basten took a slightly different approach to the majority in connection with the question of whether it was necessary and expanded upon their approach a little at paragraphs 74 and 75 at page 696 of the blue book and he concluded in substance that there was expense associated in locating and taking a statement from them and a likelihood and that five years after the event they would not have an independent recollection of what occurred and that ‑ ‑ ‑

BELL J:   The Act does evidence an approach of taking into account considerations of that sort, does it not, in some respects?

MR DONALDSON:   Yes, in specific provisions that are directed towards facilitating the calling of the maker of a document if he is not available to give evidence and our primary position is that is where one ought to look and, of course, the court did not.  If one wants to find the provisions made in this Act to facilitate tender of documents when witnesses are not available – Justice Basten’s approach, in our respectful submission, involved the dual vices of giving an inappropriate interpretations necessary and likening it to something like convenient and, in any event, was based on speculation and not evidence.  There was no evidence as to the whereabouts, the difficulty in calling these people or whether or not a reasonable likelihood existed that they would be able to provide evidence of their observations to assist the court in drawing its conclusions about causation.

That brings me to a point that was raised in correspondence from the Court in connection with the issue of whether being contained in a business record it is necessary for a statement of opinion to nevertheless fall within one of the exceptions, relevantly in this case the exception in section 78, in order to be admissible and the Court directed the parties’ attention to the decision of Justice Austin in ASIC v Rich.  In our respectful submission, his Honour’s conclusion in that case to the effect that a statement of opinion in a business record need not satisfy or need not fall within one of the exceptions to the opinion, exclusion in order to be admissible, was incorrect.

GUMMOW J:   Sections 69 and 79 are in Part 3.2, are they not, which is headed “Hearsay”.  Section 76 is in Part 3.3.

MR DONALDSON:   Yes.  Justice Austin recognised that the structure of the Act which suggests that they are independent requirements, both of which need to be satisfied.  He said that paragraph 205 of the judgment.  He made some other pertinent observations as well:

Where s 69 applies to a tender of documents, the effect is only that the hearsay rule does not apply.  The section does not declare the evidence to be admissible per se.  Therefore it seems appropriate to inquire whether evidence falling within s 69 is rendered inadmissible by some other exclusionary rule.  That is the effect of s 56(1), and the structure of Ch 3, which sets up the general inclusionary rule that relevant evidence is admissible and then, in separates parts, articulates various exclusionary rules and exceptions to them. 

Similarly, at paragraph 213 of his judgment, he said:

Section 69(2) plainly spells out the consequence of its application, namely that the hearsay rule does not apply to the document so far as it contains the hearsay representation.  The section does not say that the representation is admissible.  That, and the overall structure of Ch 3, appears to leave the way open for s 76 to be applied.  Indeed, one commentator has said it is “clear” that s 76 is intended to operate in relation to both hearsay evidence of opinion and in‑court evidence in the form of an opinion. 

In our respectful submission, that commentator was correct on the plain terms of the Act.  Justice Austin came to a different conclusion for reasons that he sets out at paragraphs 215 and 216 and what he held there was that submissions put on behalf of ASIC were of force, that is, submissions to the effect that sections 76 to 79 are confined to evidence of opinions given by witnesses in court.  Further, he observed that there would be considerable inconvenience associated – paragraph 212 he observed that there would be considerable inconvenience associated with applying the opinion exception requirements, or applying the opinion exclusion, subject to the exceptions,

in business record opinions because of the precision required by the decision in Mikita v Sprowles. 

Justice Basten touched upon this issue and we respectfully adopt his Honour’s observation at 690 of the appeal book, paragraph 59, where his Honour said in the last sentence of paragraph 59 “The statutory basis for such a conclusion”, that is the conclusion that sections 76 to 79 only apply to evidence given by a witness in court, “may be doubted”.  We respectfully submit that there is nothing at all in the terms of sections 76, 78 and 79 to suggest that the rule is confined to oral evidence given in court and that given the structure of the Act and the clear terms, that is, the clear limited terms, of the impact of section 69, the construction for which his Honour Mr Justice Austin contended is not available.

I should also note in relation to the observation that there was enormous impracticality associated with reading the Act in that way.  Justice Handley observed on an application for leave to appeal Justice Austin’s decision, which leave was refused on the ground that it was an interlocutory decision and there was no good reason to grant leave in respect of this interlocutory decision, but the decision of Justice Handley which was also referred to in the letter that we received from the court observes at paragraph 13 that there is no good reason for supposing that the principles in Makita will apply with full force to opinions stated in business records in any event.

So that although he did not have to decide the question, Justice Handley observed that perhaps Justice Austin’s anxiety about the impact of treating the Act in that way - anxieties were not entirely well founded.  The primary point is it is, in our respectful submission, simply and plainly unavailable as a matter of construction.  That is all we wish to say in connection with the principal appeal.  Unless I can be of further assistance to your Honours, we might seek to respond to whatever submissions are made in relation to the notice of contention in due course.

FRENCH CJ:   Yes, Mr Morrison.

MR MORRISON:    Your Honours, it might be helpful to go back to the photographs, because there are a number of them which were not examined a little earlier which might be of assistance to the Court.  We start at 434.  That photograph shows the 1.5 metre drop, the position of the bodily fluids, and the dog leads, and gives some impression of the relatively gentle slope of the sidewalls. 

Over the page on 435, similarly you see both that and also the very limited lip which was available for someone approaching downhill, and we see that again at 436, and in places that lip is obscured by vegetation as well.  Again at 437, we see the relatively gentle slopes on the sides and the sheer slope of the vertical wall and 438 also emphasises that.  In 440, we see again – this is in a photograph taken by the police at the time – the dog leads and we can see the bodily fluid.  There are some gloves there which clearly must have come from the ambulance officers and we ‑ ‑ ‑

HEYDON J:   What is the red X on that photograph?  It is probably not relevant, but you see a red X on page 440.

MR MORRISON:    Yes.  That red X was marked during the course of the hearing at first instance to indicate the direction of his home.  Similarly, at 442, we get a better view of the markings on the concrete at 443. 

FRENCH CJ:   We know that the dog leads were found in that position.

MR MORRISON:   Yes, and then also ‑ ‑ ‑

CRENNAN J:   I think Justice Basten made the observation that they may have been moved by somebody at some point.

MR MORRISON:   That is possible.  His Honour, in reversing the view he had previously taken, did not give any great significance to the dog leads as such.  He thought other things were much more significant.  Page 447 also gives a better view of it.  If you turn then to photographs which came in some of the expert reports, and your Honours will be aware that the experts were universally rejected in their opposing views as to what had caused the accident at first instance and the Court of Appeal did not interfere with that conclusion but some of the photographs they took are of broad assistance.

Page 458 shows the downhill view in the general direction from which the respondent would have come and then we get a better view at 459 and 460 of the relative difference between the drop and the slopes from the side and bearing in mind that the accident occurred some time between 3.30 and just before seven in the morning and that there were only a few minutes of daylight and bearing in mind also that the decision of the Court of Appeal that the accident occurred in the dark has not been the subject of appeal to this Court, one can readily see that the conclusion that came at first instance that there was a duty of care and that that duty of care had been breached, particularly by night, how that readily came about.

HEYDON J:   There is a sharp distinction being drawn.  Is it said that the failure to fence the sides of the drain was not in breach of any duty?

MR MORRISON:   There was no complaint about the failure to fence the sides, your Honour.  Can I then take your Honours to 466?  These are photographs which show some dimensions which might be helpful.  The critical dimension, in one sense, is that the bodily fluids, the blood and urine, are very much closer to the sheer drop, if one has a look at the bottom of 466, than they are to the sides.  In fact, we know, as the Court of Appeal discussed, the distance from the sides was quite considerable, of the order of two and a half metres or more, whereas they are found, effectively, at the very foot of the vertical drop.

BELL J:   Can I just take this up with you, Mr Morrison.  You indicated that no real significance had been attached by the primary judge to the expert evidence.  There was, I think, on your part a report by an engineer, Mr Burn’s, who did not purport to get into the field of the mechanics of a fall in the way that was posited in your case, but Mr Bailey, the expert called by the appellant, did express opinions about that.  Those opinions were posited upon an assumption that the respondent had not moved after he received his reported head injuries.  This is at appeal book 516.

MR MORRISON:   Yes.

BELL J:   Am I right in my understanding that in circumstances where there was no evidence one way or the other on that topic the expert evidence was taken to assume, as it were, a limited significance?

MR MORRISON:   There were other reasons.  I think that his bald assertion that the accident occurred in a particular way her Honour found was not particularly helpful, and her Honour did not, in the light of the whole of the material, find either expert particularly helpful as to causation.  The ultimate problem with the way her Honour approached it was that her Honour simply said there are a range of possibilities.  I do not have a view about which was more probable.  What her Honour did not do was, as the Court of Appeal said, go through a weighing process.  Perhaps if I come back to that in a slightly different context, your Honour ‑ ‑ ‑

BELL J:   Perhaps if I can just flag the matter that is the cause of my concern.  You are taking us now to a number of propositions about the configuration of the dish drain with a view, I understand, ultimately in respect of the notice of contention, to inviting this Court to draw some conclusions about that material.

MR MORRISON:   Yes, although, my prime purpose at the moment is just your Honours to have a clear picture of exactly what was found at the scene and what the scene looked like because it was not apparent that the Court had had the advantage of seeing all of this material.  So I will revert to the issue your Honour has raised ‑ ‑ ‑

BELL J:   Very well, I will come back to it with you at a later time.

MR MORRISON:   Please, your Honour.  Would the Court also have a look at 482 which gives some assistance as to the relative slopes, and then particularly at 483, and this was a photograph taken by the respondent’s expert very shortly after the accident – I am sorry, I am told by someone in the respondent’s family but published in the expert’s report, taken very shortly after the accident.  It tell us what the appellant thought caused the accident, because they have put up a temporary fence along the top of the wall which a few months later became a permanent fence.  Your Honours will see that again at the foot of 486, and then there is a couple of helpful photographs ‑ ‑ ‑

HEYDON J:   What you have just said is a rather unorthodox piece of reasoning, is it not?  What they did after the accident shows what they could have done before the accident; it does not show that they should have done it and it does not show that the plaintiff actually fell over the point at which he says he fell over.

MR MORRISON:   I did not make the submission that it was probative; I merely made the submission that the appellant’s view, whatever is being said to the Court today, at the time clearly was something quite different, but I do not say that that is probative of the appellant’s case.

HEYDON J:   That photograph, where exactly was the orange coloured mesh safety fence?

MR MORRISON:   Along the 1.5 metre drop, not along the side.

HEYDON J:   Well, if you say so, I suppose I have to accept it.  The photograph does not seem to demonstrate that; it seems to be around the whole of the drain.

MR MORRISON:   There are two photographs of the fence and I will find the other one.  There is another one at 486.  The fence seems to extend beyond the edge of the wall, but the fence is effectively in a straight line.  It does not turn a corner.

HEYDON J:   But it does not show it is the sides.

MR MORRISON:   It does not.

HEYDON J:   So we do not know whether the mesh was along the sides.

MR MORRISON:   I am not sure that that is controversial, there was some evidence about it at first instance, but my learned friends can indicate whether there is any issue about that, but that is our understanding of where the evidence was left.  Your Honours, what we simply say is that that was the base material which formed the context for the ambulance officers’ notes.  The appellant argues that the question mark renders the comment mere speculation and not an opinion.  The ambulance notes are set out at 678 in the blue volume, and more conveniently set out there than trying to read the original.  Your Honours can see:

Decreased level of consciousness
OE pt responding to painful stimuli –

In other words, clearly not responding to voice, only responding when he is stuck with a pin –

haematoma
To RI abrasions to face & haemorrhage
[Indistinct] nose . . .  
Pt combative throughout [Rx or Pt] incontinent of urine.”

Then follows the note:

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

In the subsequent retrieval ambulance record, and as the Court of Appeal rightly pointed out, there are some errors in timings in this which make it of less value than the original ambulance officers’ note, but it does also contain the comment:

Police investigated site – no evidence of fight.

In other words, no evidence that he had been assaulted or that there was some other cause other than a fall.  It does not seem to be in contest here, though it was in contest at first instance that the only cause for his injuries was a fall.  It is noted, however, there that as at – on the first examination he has gone back to a Glasgow Coma Score of 7 “pupils equal & sluggish”.  Initially his GCS score was 7; it increased to 8 a little later.  That is clearly consistent with a decreased level of consciousness, very reduced understanding of capacities.

Whilst it is not conclusive in the sense that it is not absolutely probative that he has not moved, the ambulance officers had the advantage of seeing him, of undertaking this examination, and of reaching conclusions in relation to whether or not he was in a position, relative to the urine and blood and the wall, which enabled them to express any view as to what the cause of his injuries was.

GUMMOW J:   Was there any attention paid at any stage to the significance of the defences based on sections 5F, 5G and 5H of the Civil Liability Act, bearing in mind this was Lithgow City Council?

MR MORRISON:   The answer is that there was no appeal from a finding that there had been a duty of care and a breach of that duty after an examination of the Civil Liability Act at first instance.  So the answer is yes they were examined.  This Court falls to consider the matter on the basis that the Council was in breach of its duty of care to the plaintiff.  The only question before this Court is causation; has the respondent shown that it is more likely he fell from the 1.5 metre drop than fell from the sides?

GUMMOW J:   In that causation question there is no intrusion of the Civil Liability Act, is there?

MR MORRISON:   None raised at any stage to this point and no causation issue which takes us away from the common law.

GUMMOW J:   Thank you.

MR MORRISON:   We would say, your Honours, that the proposition that putting a question mark beside the only theory that is advanced, the only possibility that is raised, may, as was said by the learned President below, reduce to some degree the weight that one gives it, but given that it was the only theory advanced as to what explained the fall and his injuries, that question mark does not remove all probative value from the comment because it would be the same as a medical practitioner in hospital notes, which would be admissible on the same basis under section 69 of the Evidence Act, saying “? meningitis” after finding various symptoms indicative of it. 

BELL J:   But that would be an opinion based on the medical practitioner’s specialised knowledge.  The opinion here is an opinion as to the physical mechanism that occasioned the injuries that were apparent when the ambulance officers attended.

MR MORRISON:   It is a mixture of things.  It is a mixture of the nature of the injuries, their appearance, his relationship to the wall, the position of the blood and urine, any other possessions.  It is the whole gamut of things which cause them to express the conclusion in that form, and they raise it as a possibility because they did not observe what actually happened, but nonetheless section 78 clearly envisages not just what has been observed in relation to a particular event, but the opinions in relation to the surrounding circumstances.  The words in 78(a) “or otherwise perceived” clearly intended that.  

Any other interpretation would have the vice that only opinions as to what was actually seen – and one will recall that though it has not be advanced orally today, the appellant’s written submission said, well, if they did not see the fall, they cannot express an opinion under section 78.  Well, section 78 in that case would have no function whatever because it would leave no room for inferences and mean that opinions in relation to observations or perceptions after the event could not be put in.  We just say that that would be clearly wrong, but though it is in their written submission, it does not seem to be pressed today.

So whilst the question mark may make the theory as to what occurred a less positive assertion, as the person put it “it does not rob the opinion or inference of all probative force” and at paragraph 96, Justice Basten, in a separate judgment expressed the same view, Justice Grove of course agreed with the President. 

Your Honours would have seen from the submissions that opinion has been defined in All State Life Insurance v ANZ by Justice Lindgren at 75D to F as “an inference from observed and communicable data” and we would say that that squarely describes what we are talking about now, and we would say that in those circumstances what the ambulance officers were describing was just that; an inference from observed and communicable data.

BELL J:   Do you say that had the ambulance officers been called and given oral evidence, in addition to giving evidence of the observations they made at the scene, it would have been open to lead evidence of an officer’s opinion as to the mechanism that had produced those injuries, namely the fall?

MR MORRISON:   Only in the form of a summary conclusion in the same way that a lay person can say, “I thought the person was drunk”.

BELL J:   But it is very different.  Lay opinions of that character, a lay opinion that a person thinks another is drunk or is aged between 40 and 50, something of that character, that is one area, but here we are looking at an opinion by a person without any apparent expertise to express an opinion about the relationship between injuries and a fall, that, by reason of the location of the body and other physically observed signs, the opinion was formed that the respondent had fallen from the wall.

MR MORRISON:   We would say it is the same thing and the reason is this.  If the ambulance officers had been available and had been able to go through saying this was exactly where the body was in relation to the wall, this was where the urine was, this was where the blood was in relation to the body, the degree of movement, the degree of consciousness, the severity of the injuries, all of those things would allow the court to reach a conclusion itself in relation to the likelihood that the fall occurred from the wall.

BELL J:   Does it follow from that that it would not have been open to elicit from the officer in oral evidence the opinion that the injuries were sustained as the result of the fall from the wall and that it is the inability to set out, in a detailed way, the distances and the level of consciousness of the respondent that you say makes this opinion admissible?

MR MORRISON:   In much the same way as a lay person may not be able to give the sort of detail which indicates that they thought a person was affected by drugs or affected by alcohol so they used the compendious description.  It may be that some lay people might be able to say, “I thought, observing the pupils of his eyes, that there were indications.  I thought the way he staggered was indicative of drunkenness rather than of some physical disorder.”  But the court has historically always allowed the compendious description, particularly in circumstances where we do not, for one reason or other, either through the inability of a lay person to explain those matters, or in this case, through the absence of the ambulance officers who were not there to give evidence. 

So we would say that whatever might have been the position if the ambulance officers had been called, nonetheless, the compendious description which raised just the one theory that he fell from the wall is admissible in the particular circumstances and what is being done is of assistance to the court.  If you find someone severely injured at the foot of a significant drop, it is not a particularly challenging conclusion to say that it is certainly possible that the injury occurred falling down that drop.

BELL J:   What does the statement in the ambulance officers’ report then add to that common sense conclusion that you say is one that might be drawn from the evidence that was available to the primary judge?

MR MORRISON:   What it adds to it is this.  The primary judge did not have the advantage of the ambulance officers saying, “We found his feet 60 centimetres from the wall.  We found him in a particular direction.  We found his limbs at a particular angle.  This was his level of consciousness.  This was precisely where he was in regard to the bodily fluids.”  Not having those advantages, the only way in which a fair impression of what they saw is conveyed is through that compendious note.  So that there might have been another, and perhaps in some circumstances, a better way of allowing the court to come to the same result.  But the nature of the sort of notes that are made on these occasions – and bear in mind this occurred five years before the trial. 

Now, there is no evidence as to why the ambulance officers were not called by either side, but five years before, in those circumstances, their impression, their immediate impression at the time, is the most valuable thing that they can provide the trial judge with and absent the sort of detailed material which might have been an alternative, it is the best way of providing a clear impression of what not just the ordinary lay observer, but a particularly experienced lay observer thought on arriving at the scene and examining the patient.  That is why it is of value and that is why it is of some probative value.

Now, we would respectfully submit that the Australian Law Reform Commission Report No 26, at paragraph 739, and I will not take your Honours to that, but I simply say that it would support the interpretation which we put on it.  The next issue that we should address is this.  The appellant argues that necessary means effectively cannot prove without.  Your Honours, that was again address in the Australian Law Reform Commission Report, the passage I have referred your Honours to.

GUMMOW J:   Not very cogently, in my opinion.

MR MORRISON:   I am sorry, your Honour.

GUMMOW J:   Not very cogently, to my mind.  Did Justice Basten deal with this question?

MR MORRISON:   Yes, he did, your Honour.

GUMMOW J:   Whereabouts?

MR MORRISON:   We will find it more quickly this way.  Paragraphs 74 and 75 of his Honour’s judgment where he said:

Admission of the ambulance report was the only means of obtaining relevant evidence as to the cause of the injuries –

The discussion on what was meant by “necessary” commences at paragraph 66, which is on page 693, and he poses the question there:

whether the evidence of the opinion was “necessary” to obtain an adequate account or understanding of the ambulance officers’ perception.

GUMMOW J:   Chief Justice Marshall said all that could be said nearly 200 years ago in McCulloch v Maryland, it seems to me, which his Honour referred to at paragraph 68.  There is no fixed character.  You have to construe the statute.

MR MORRISON:   Indeed, and, your Honours, the authorities on the use of the word “necessary” – “necessary” has been used in the Supreme Court and now in the UCPR in New South Wales for a long time in respect of such things as in personal injury cases, interrogatories and discovery.  Examples we have provided in our written submissions are Boyle v Downs, Percy v GMH where it has been said that “necessary” means necessary in the interests of a fair trial, not essential.  That is supported by what is said in Odgers 8th edition at 1.3.4180. 

Looking back to older English authority, Griebart v Morris [1920] 1 KB 659, “necessary” for disposing fairly of the cause or matter, and again in a more recent example, Yamazaki v Mustaca [1979] NSWSC 1083. So “necessary” does not mean it cannot be proven any other way. “Necessary” means necessary in the sense that it is reasonably necessary for a fair trial. The test for discovery is it must be necessary, but that does not mean you cannot prove your case any other way. It merely means necessary for the proper disposal of the matter.

BELL J:   But the “necessary” here is in order to obtain an adequate account or understanding of the person’s perception.  It is the concept with which the common law is familiar of the difficulty of people explaining coherently why they formed an opinion of the sort that all of us form every day about other people’s age, states of sobriety, and the like.

MR MORRISON:   Yes, and in this particular case, even if we were wrong about the definition of “necessary”, we would say that the Court of Appeal was correct in saying it was necessary in these circumstances, even applying the “absolute need” test for the reasons your Honour has just enunciated.  The President, at paragraph 31, said that in the absence of the officers:

the only way to get any account of their perception was to admit the documents and the opinion contained therein –

Justice Basten said much the same at paragraphs 74 to 75.  It –

was the only means of obtaining relevant evidence –

from the ambulance officers.  Justice Basten also, having regard to the lapse of five years, gave the obvious reasons as to why the ambulance officers might not have been called, why indeed by either side, and certainly no complaint or suggestion was made at first instance that there was any particular obligation on one party or the other to call the ambulance officers.

GUMMOW J:   But does “necessary” take any colour from the circumstance that the opinion is tended through a business record?

MR MORRISON:   That comes back to the question raised with the parties by the court.

GUMMOW J:   And is in this enigmatic form.

MR MORRISON:   Yes.  We would say that the better view in that regard is that taken by Justice Austin in ASIC v Rich.  Unsurprisingly, we have put that.

GUMMOW J:   Namely, what is the view?

MR MORRISON:   The view taken by Justice Austin ‑ ‑ ‑

GUMMOW J:   What do you say it is - just do not read it out again.

MR MORRISON:   No.  What it is, first of all, it is unlikely in the extreme that in most business records those expressing a view, even though they may have had a direct knowledge of the matter, or have received the information from someone who would have had direct knowledge of the matter, meeting the section 69 requirement, that they would comply with the requirements for opinion evidence.

In those circumstances, if one imposes a strict view of section 78 or section 79, onto section 69 – the business records provision – the likelihood is that much that is contained in business records and which historically has been of great value to parties in litigation would effectively be excluded because the makers of the document would never have contemplated the need to comply with the rules in regard to the way in which opinion evidence is to be expressed.  It would be extremely damaging to the way in which litigation would function.

That, indeed, his Honour set out in some detail.  But, we would add to that, this as well.  The Australian Law Reform Commission Report No 38 at paragraph 144 deals with what is now set out in section 60(2) and that, effectively, allows hearsay evidence which has been admitted for one purpose to be used for others.  If it is admitted for some other purpose, then once it is in, it is in for all purposes.  That would be inconsistent with the application of section 78 as a requirement and we would say that in those circumstances one would more readily accept the view expressed by Justice Austin. 

FRENCH CJ:   The opinion contemplated by section 78B is an opinion which at least has to be capable of casting some light on what the person who expressed it saw in the context of physical events.  In the common law compendious impression cases what they are saying is, well – they say that, “So and so, was drunk”.  That means that a combination of one or more of the following features is likely to have been observed - slurred speech, unsteady gait, bloodshot eyes and so forth, not necessarily all of those but at least a combination of those sorts of things.  What is the perception of which we are gaining an understanding, on the assumption that this is an opinion and not a speculation, in this case?  Is it the existence of a location of the body and arrangement of the limbs and so forth, or one of a number of locations and arrangements of the limbs which are consistent with a fall from 1.5 metres?

MR MORRISON:   It is a range of things and it is probably helpful if I go through them now.  Justice Basten very helpfully, commencing at about page 700, set out six factors and analysed them.  We would respectfully adopt what his Honour has said but add a couple of matters of our own as well.

FRENCH CJ:   This is the evidence he is examining himself, is he not?

MR MORRISON:   Yes.

FRENCH CJ:   I am looking at what the opinion – the combination of things the opinion tells us.

MR MORRISON:   I was using that ‑ ‑ ‑

FRENCH CJ:   As a proxy, I see.

MR MORRISON:   ‑ ‑ ‑ in a sense to go back to that because they are the very matters in respect of which the ambulance officers – we do not have the advantage of saying to the ambulance officers, “How severe were the injuries?”  We get that from a variety of sources but one of the sources is their observations at the time, the nature of the injuries, the parts of the body the injuries were to, the location of the body in relation to the wall by comparison with other locations, the attitude of the body, the position of the body in relation to the blood and urine, the dog leads, although his Honour did not give that much weight but we would say it is a factor, albeit a minor one.

That fact that, for example, in respect of – one has to put all of those things together, and it is perfectly true that in one sense if one had all of that detailed information then the ultimate conclusion would be one upon which the trial judge could readily reach the conclusion without the assistance of the ambulance officers telling her the bleeding obvious, but in this particular case we do not have the advantage of the ambulance officers going through all of the matters which led them to that conclusion.

FRENCH CJ:   Well, the only thing that the ambulance officers have that we do not have, if one looks to that list, putting to one side for a moment debate about whether the dislodged belongings had been moved or not, is the position of the appellant when discovered.  I mean, that may be enough to get you in.

MR MORRISON:   A little bit more than that - also the ambulance officers would have observed whether there was any indication, for example, that the body had moved away from where the blood and urine was.  There is no indication to us of that, although there are some other indicia there, for example, the position of the dog leads very close to the blood and urine suggesting that the body was very close to that point, but the ambulance officers knew a good deal more than we know about the relative positions of the body.

Also, they knew about the degree of unconsciousness.  We know something because they, for example, had to get a response by pin prick, they could not do so by talking.  We know that there is a relatively low GCS score.  We know from the other material which did go into evidence that there was brain damage, there were facial injuries.  There was a probable T11 fracture.  There was an injury to the right wrist.

All of those are matters which weigh in the balance.  Some of them would have been apparent at the scene to the ambulance officers and would have combined with the other material to assist them in reaching the conclusion.  The court did not have the advantage of them going step by step through those matters, but their ultimate conclusion as a commonsense one was one which would weigh with the court, or should weigh with the court, we would respectfully say.

GUMMOW J:   What is the force of the word – going back to what Justice Bell was asking, I think – the phrase “adequate account or understanding”?  What is the force of the word “adequate” – adequate as against what criterion?

MR MORRISON:   Adequate in the sense of making it useful, we would respectfully say – adequate in the sense of explaining the conclusion, adequate in giving the sort of assistance which the court needs to have from those who had advantages which the court lacked.  We would not put it any higher than that.

GUMMOW J:   But can it be adequate if the maker of the business record is not going to be available for cross‑examination?

MR MORRISON:   The whole purpose of a business record is to permit the adducing of evidence from someone who had either first‑hand knowledge or obtained their information from someone who might reasonably be supposed to have first‑hand knowledge.  In those circumstances, their perceptions at the scene as to what they found some short time after the accident had clearly occurred is of value and weight, we would respectfully say. 

FRENCH CJ:   Does section 78B enable the Court to rely upon the opinion or is it no more than facilitating the use of the opinion to an understanding of what the witness saw and, in that sense, the opinion is being used to prove the existence of a fact, but not the fact which is the content of the opinion but rather what it casts light on.

MR MORRISON:   I think we would respectfully adopt the second of those approaches in that ultimately it is a matter for the court whether or not he fell from the wall.  What is significant about the expression of the opinion “? Fall 1.5 metres” is not that that in some way binds the trial judge as to a conclusion, but rather that the impression as to the physical circumstances which they observed was one consistent with that conclusion.  So, yes, what your Honour is saying is, is it an indicator of what they observed in terms of physical facts at the scene?  That is the better approach, we would respectfully submit.

FRENCH CJ:   The logic of that is you then go from that to the inference which is contained in the opinion but not by virtue of the opinion itself.  It is that second logical step.

MR MORRISON:   Just in the same way as the lay person who says that man is drunk might or might not be correct about that.  What it does is it is not conclusive as to the drunkenness, rather, it is indicative of a range of obvious features which could be indicative of drunkenness or could be indicative of something else.

FRENCH CJ:   A man might have had a stroke, for example, and show the same – yes.

MR MORRISON:   Yes.  It is a useful compendious way of describing facts which are either too ephemeral or too complicated or too difficult in many circumstances to list.  An ambulance officer is never likely to have listed all of the factors which a court would like to know but which would be relevant to the inference which we are asking be drawn arising from what they observed.

Your Honours, the other matters – and this is really completing the submission in relation to notice of contention – that his Honour Justice Basten, having dealt with those matters and dealt with them with significant care, the other matter his Honour did not deal with was the configuration of the area in this sense.  The wall is a great deal closer to the blood and bodily fluids than the sides ‑ ‑ ‑

GUMMOW J:   This is in addition to paragraph 85, is it, of Justice Basten?

MR MORRISON:   Yes, your Honour.  Yes.  We would say that having asked your Honours to look at the photographs of the scene, the suggestion that a person would suffer injuries of this degree of seriousness by stumbling down from the side, ranging from fractures to brain damage to severe facial injuries, by comparison with an unexpected fall from a concealed 1.5 metre drop, if one has to compare the likelihood of the two, we say it is pretty obvious which is more likely in the circumstances and ultimately that is the inference that we would ask this Court to draw.

It is that compelling conclusion which ultimately caused Justice Basten to reverse the opinion which he had expressed previously when he had agreed with the other members of the court but, on reconsideration concluded that there was sufficient evidence, even without the ambulance officers’ opinion, to cause him to be comfortably satisfied that the fall had occurred from the 1.5 metre wall.

HEYDON J:   Mr Donaldson says it is not really good enough to say someone might think one thing and your Honours can form your own view.  He says that error has to be shown – something more.  This is a strict appeal not a rehearing.

MR MORRISON:   But what they ask this Court to do is to disturb the Court’s finding on section 78 ‑ ‑ ‑

HEYDON J:   Which is a matter of law.

MR MORRISON:   Which is a matter of law, but once that is done ‑ ‑ ‑

HEYDON J:   We have a 2-1 majority in the Court of Appeal against you, do we not, on the notice of contention?

MR MORRISON:   Indeed.  But in respect of which there is a notice of contention which squarely opens the factual issue for this Court to determine because it is perfectly open to this Court to take a different view as has been done in many other cases.  We are, after all, dealing with inferences and a Fox v Percy circumstance where this Court is at no disadvantage by comparison with the Court of Appeal.  In those circumstances, if Justice Basten was correct in the Court of Appeal and this Court took a similar view, it is perfectly open to this Court to adopt that approach.  The Court of Appeal had no advantage over this Court in respect of the facts.

BELL J:   Can I return to the question of Mr Bailey’s report?  Am I right in thinking that both Mr Bailey’s report and Mr Burn’s report were received and neither was cross‑examined?

MR MORRISON:   Your Honour is correct, and her Honour said that she found them to be of little assistance.

BELL J:   I appreciate that, but a matter that I am taking up with you is that you say that anyone, including judges with no expertise with respect to the severity of a fall necessary to occasion fractures or the like, might nonetheless form a commonsense opinion.  The only evidence it seems to me touching on that matter is Mr Bailey’s.  Mr Bailey’s qualifications, apart from in biomedical engineering, or as forming part of his qualifications in biomedical engineering, includes some understanding of human anatomy.  I do not know what the basis of his qualification is to express the opinion that he does on page 516 of the appeal book in subparagraph (ii), but he says that the absence of “contact fracture of the skull or neck” is an indication against the theory that is advanced on the respondent’s behalf.  What is the basis for a judge coming to a different view on an issue of that character?

MR MORRISON:   Of course, what he had failed to realise was that there was a probable T11 fracture, and her Honour at page 562 criticised Mr Bailey, at paragraph 68:

He did not consider whether the plaintiff might have fallen in some way other than, in effect, stepping over the wall and falling.

At paragraph 70:

In the result, senior counsel for the defendant did not place great reliance on Mr Bailey’s report.  It is of little assistance in determining the issue of causation.

There was no appeal from that decision.

BELL J:   I appreciate that.  The matter that I am taking up with you is the basis upon which those who have no background in medicine and the mechanics of the human body in a fall might form a common sense conclusion from the fact that injuries look unattractive in a photograph.

MR MORRISON:   We would say that the more valuable tool is the view of those who are qualified at least in first aid and who arrive at the scene and observe things in situ and hence the ambulance officers’ view probably is of the greatest assistance.  Ultimately, the court has to weigh all of these things into account.  Her Honour we say rightly rejected Mr Bailey’s views based as they were upon particular assumptions, some of which were not made out, and her Honour sets that out at page 562.

CRENNAN J:   May I just interrupt for a moment and direct your attention to page 477, which is a medical report, and in the context of Mr Bailey’s views about no fracture, if you look under the heading “X-Rays” there is a reference there to “Fracture of floor and medial wall of right orbit”.  Photographs show heavy damage in relation to the right eye.

MR MORRISON:   Yes, I understand.  I am not quite sure where your Honour is taking me.

CRENNAN J:   You have told us that her Honour noted that senior counsel did not seem to rely on Mr Bailey’s report.  Justice Bell has been asking you about a particular part of Mr Bailey’s report.  I am just directing your attention to the medical evidence in relation to fracturing of the skull area in the right eye position.

GUMMOW J:   Is there any reference to the medical evidence?

MR MORRISON:   That is in a report of Dr Conrad.  Your Honour is asking about the possible T11?

CRENNAN J:   No, I was not asking about that.  I was talking about facial skull fracture.

MR MORRISON:   Yes.  There is no question that he obviously had, on any view, and someone who has obvious injuries to the face is found to have organic brain damage as a result of impact damage to the head and injury to the eyes, he clearly has hit his head very hard on something.  That much is self‑evident.  One does not have to be a medical expert to come to that conclusion.  I am not quite sure that that advances the question in relation to the ‑ ‑ ‑

GUMMOW J:   Did the trial judge refer to what Dr Conrad had said on page 477 in addition to noting the dismissive treatment of Mr Bailey?

MR MORRISON:   Not by name, but only in a very compendious form at paragraph 81, your Honour. 

CRENNAN J:   That is in the damages section.

MR MORRISON:   Purely in damages.  What her Honour did not do was – well, what her Honour did do was this.  At 75 she said:

In this case, there are a number of competing inferences which reasonably arise from the same facts. 

Then 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 –

GUMMOW J:   That is after paragraph 70 which talks about Mr Bailey, but it does not talk about Dr Conrad, does it?

MR MORRISON:   That is so.  Her Honour does not appear to have used the medical evidence to assist on that issue and the Court of Appeal was critical of her Honour’s approach in relation to that aspect and, indeed, that is why the Court of Appeal reviewed the matter and took, in some respects, a different view, both the first time round and the second.

HEYDON J:   But when you speak of a T11 fracture, is that a fracture of the skull or a neck injury?

MR MORRISON:   I am sorry, your Honour?

HEYDON J:   You spoke of a T11 fracture as being inconsistent with paragraph (ii) on page 516 of Mr Bailey.

MR MORRISON:   T would be thoracic, so back.

HEYDON J:   Neck injury, you say?

MR MORRISON:   A back injury, yes.

CRENNAN J:   Vertebrae.

HEYDON J:   What does Dr Conrad say about that particular subject?

MR MORRISON:   Dr Conrad did not comment on that.  Your Honour, we will look up where the possible T11 fracture comes from and give your Honour reference to that rather than take up time now.  But we would ultimately say, your Honours, that if this Court is minded to interfere with the Court of Appeal’s view of section 78 and if this Court does regard section 78 as superimposed on section 69, then in those circumstances it

would be proper for this Court to reconsider the evidence considered by the Court of Appeal.  We would urge up on this Court the same approach and conclusion reached by Justice Basten when he revisited the area and reviewed the view he had earlier taken.

FRENCH CJ:   Sorry, before we leave the vexed subject of the fracture in relation to the floor and medial wall of the right orbit, that, in Dr Conrad’s opinion, is a – that seems to be a reference back to x‑rays which were taken.  I notice at 475, is that an x‑ray report, or part of an x‑ray report?  It says:

There appears to be fracture of the floor and medial wall of the right orbit, but further evaluation of the facial bones is suggested for more accurate assessment.

MR MORRISON:   It is certainly a radiology report.  It may well be a CT scan rather than – and, indeed, that appears from the fact it talks about continuous slices.  My limited knowledge of these matters would suggest that that is not an x‑ray.  That is a CT scan.

FRENCH CJ:   Well, the x‑rays referred to in Dr Conrad’s report is in fact a non‑contrast CT scan of the brain.

MR MORRISON:   Then it may be the same thing.

FRENCH CJ:   Yes.  So we do not know whether he has made an assumption or conducted a further investigation.

MR MORRISON:   Your Honour, we can sort out now that business of the T11 fracture.  If your Honours go to page 615 in the Court of Appeal judgment, at paragraph 68 there is reference there to the lack of attention to the probable T11 fracture and a note that:

By September 2002, the T11 fracture was assessed to be stable by Dr Nair.

So it would be Dr Nair who would be the relevant source of the information, but that appears not to be controversial.  Dr Nair, I am told, was a staff specialist in the Nepean Hospital.  Unless there is anything else, those are our submissions.

FRENCH CJ:   Thank you very much.  Yes, Mr Donaldson.

MR DONALDSON:   Your Honours, I can be very quick.  Most of what we need to say in response to the notice of contention we have said in writing.  I think we have made our position clear in relation to the Fox v Percy point and that is that the paragraphs relied on by my learned friend in the decision in Fox v Percy are paragraphs dealing with the proper approach of the Court of Appeal in the event of a rehearing and the entitlement of the Court of Appeal conducting a rehearing to re-agitate and make decisions of its own in connection with inferences from proven facts. 

This is a strict appeal and not a rehearing and we would respectfully adopt the observations of Justice Heydon, namely, that if the appeal is successful in connection with the ambulance report, then the position is that there is a 2:1 majority in favour of the view that the onus of proof was not satisfied and no error of the type that would attract review.  If we are wrong about that, we made the point in the written submissions which I think was raised by ‑ ‑ ‑

GUMMOW J:   Wait a minute.  What order do you seek?  I am looking at page 716.

MR DONALDSON:   We seek an order that the proceedings be dismissed with costs.  Whether or not any conclusion as to the cause of the accident can be drawn or whether or not from the injuries that were the subject of evidence is a matter about which the trial judge and the Court of Appeal were in no position to draw conclusions without medical evidence.  My learned friend took your Honours to page 437 of the appeal book.  The description that he gave to the slope on the northern side of the drain, which is the one directly in front of the camera, as being gentle we submit is potentially controversial.  Unquestionably, someone, particularly someone who was intoxicated, could have a very serious fall stumbling over a drain with a wall that steep.

Justice Basten and my learned friend made reference to the fact that the bodily fluids and blood were closer to the headwall or said to be materially closer to the headwall than the other wall of the drain.  If one goes to the photograph at page 466 of the appeal book that my learned friend took your Honours to, the description there, and I think it is the only evidence of the length of the headwall, is that it was five metres.  We know from the bottom photo on page 466 that the bodily fluids were 2.69 metres from the headwall.  If they were roughly in the middle of the drain, then they were a very similar distance from the side wall.

The third observation to be made in connection with page 466, this perhaps has more to do with the appeal than the notice of contention, is that it is difficult to see how a fall from the northern wall of the drain is any less a fall onto concrete from 1.5 metres than a fall from the headwall, and which casts further doubt on what, if any, opinion was being expressed in the ambulance officers’ note.

FRENCH CJ:   Nobody knows what happened to the dogs, I suppose.

MR DONALDSON:   No.  No one knows anything, which is really ‑ ‑ ‑

BELL J:   They went back to the ‑ ‑ ‑

HEYDON J:   I thought the dogs just stayed by their master.

BELL J:   They stayed by the master, the police removed them and they were returned to the de facto’s care.

MR DONALDSON:   Reference is made in the submissions by reference to the photo at page 568 that it depicted the general direction from which the respondent would have come.  That is another matter, we would submit, which is entirely speculative having regards to the fact that the respondent was out walking his dogs and having regard to the map that your Honours have already been taken to.  It was not as though we are dealing with a plaintiff who we know was walking from A to B; he was walking out and about around Lithgow and could have approached this park from any number of directions and there was no logical direction for him to be travelling in.  I think, really anything else we wish to say in relation to the notice of contention is adequately dealt with in writing.  They are our submissions.

FRENCH CJ:   Yes, thank you.  Mr Donaldson.  The Court will reserve its decision.  The Court is adjourned until 10.15 am on Tuesday, 10 May 2011.

AT 4.15 PM THE MATTER WAS ADJOURNED