Lithgow City Council v Jackson

[2009] HCATrans 184

[2009] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S569 of 2008

B e t w e e n -

LITHGOW CITY COUNCIL

Applicant

and

CRAIG WILLIAM JACKSON

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 JULY 2009, AT 2.28 PM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   I appear for the applicant, may it please the Court.  (instructed by DLA Phillips Fox)

MR J.S. WHEELHOUSE, SC:   May it please the Court, I appear with MR D.W. ELLIOTT for the respondent.  (instructed by Gerard Malouf & Partners)

HAYNE J:   Just before we begin, the Court has received affidavits of Nicola Lee Scoble  and Vrege Kolokossian which seem to be directed to a debate about what was or was not the exhibit that was tendered at trial.  Having regard to what appears at page 307 of the record of the black appeal book in the Court of Appeal and the record of proceedings before the primary judge where it is recorded in the course of debate about the ambulance records:

HER HONOUR:   What, query fall from ‑ ‑

CAMPBELL:   Yes, your Honour.

HER HONOUR:   ‑ ‑ but isn’t that the issue?  Isn’t that for me?

Is there really going to be a serious debate in this Court about whether the exhibit at trial had the question mark in it?

MR CAMPBELL:   Your Honour, I understand that there will be no serious debate.  My learned friend, Mr Wheelhouse, and I were able to have a discussion about this during the adjournment.

HAYNE J:   Very well.

MR CAMPBELL:   We agree, your Honour, that it is more or less in the form at application book 116.  However, more accurately, although it will not be necessary for me now to read the affidavit of Ms Scoble, it is more accurately exhibit G to that affidavit.

HAYNE J:   About whether it contains a stamp about obtained “under F.O.I. Act”.  Yes, I understand that.

MR CAMPBELL:   Yes, your Honour, but the question mark, your Honours, is there.

HAYNE J:   Yes.  Now, Mr Wheelhouse, again before we begin, is it plain from paragraph 49 of the reasons for judgment of the Court of Appeal as recorded at page 58 that the hinge about which President Allsop’s reasoning turned was “the note of the ambulance officer read in the way that I read it,” which is to say, the ambulance officer’s note read as saying, “Fall from

1.5 metres onto concrete”.  Is that the hinge about which the reasoning turned?

MR WHEELHOUSE:   Yes, your Honour.  I am mindful of what President Allsop said at appeal book page 60, paragraph 56, I think.

HAYNE J:   Yes.

MR WHEELHOUSE:   The President, with great respect to him, his Honour makes it abundantly clear that his conclusion is premised on his interpretation of the second line without the question mark.

HAYNE J:   Is it also plain that the record that was produced in the Court of Appeal was reproduced in a form which cut off the question mark in the note and thus that the Court of Appeal had before it an imperfect record of what was in evidence at trial?

MR WHEELHOUSE:   Yes.

HAYNE J:   Yes, well, just a moment, Mr Wheelhouse.  Well, now, Mr Wheelhouse, what are we to do in this matter?  You are for the respondent, where do we go from here?

MR WHEELHOUSE:   Your Honour, I am not surprised I am called on first in those circumstances.  Your Honours, in my respectful submission, the existence of the question mark on the exhibit before the trial judge and its absence from the rehearing record does not detract from the ultimate thesis adopted by the President and the two concurring other judges, namely, that the second line, namely, the patient history included the words “fell over the wall 1.4 metres into a concrete drain” is some evidence combined with all the other evidence that enabled the inference to be drawn that the negligence of the applicant caused the injury to the respondent.

Your Honours, the situation may have been different if the opinion of the ambulance officers was the sole determining factor.  It may have been the clincher, as it were, but, in my respectful submission, it really only operated to confirm the overwhelming nature of all the other evidence.  If one goes through the list of various matters ‑ ‑ ‑

HAYNE J:   Well, do you accept that that is not what President Allsop reasoned or concluded?  I have in mind particularly the first sentence of paragraph 49.

MR WHEELHOUSE:   Your Honour, I have some difficulty with the reasoning process adopted by the President and, indeed, if there was to be given a grant of leave, we would seek to file a notice of contention and ‑ ‑ ‑

HAYNE J:   To say what, because this is not something that I think has yet emerged anywhere from the record, Mr Wheelhouse.  To contend what particularly?

MR WHEELHOUSE:   Well, we would say, your Honour, this is a case where the reasoning of the Court of Appeal ought to have started off with the proposition that what the respondent had demonstrated at trial was a breach of duty by the applicant creating a particular risk of injury and the injury that was proven to have occurred to the respondent was consistent with the risk.  We say that his Honour then should have gone through and analysed all the other facts that were established, uncontrovertibly, and come to the conclusion that those facts did not detract from that prima facie position and concluded that there was no competing theory for the respondent’s injury.

His Honour, in our respectful submission, failed to apply good and sensible common sense to the facts as ultimately found in this case, and the reason why, in my respectful submission, he ended up in that position was that he did not address the circumstantial evidence in a logical way commencing with the essential proposition, namely, that negligence was demonstrated by proof of this particular hazard, namely, a very dangerous drain in a public park, unfenced, and injuries consistent with the risk that that hazard created.

His Honour seemed to have come to the opinion that what was being presented to him was an erroneous set of propositions, namely, he was dealing with competing theories, but, in my respectful submission, what was being presented to the court was evidence that would have satisfied the onus, albeit there being no direct evidence of the event, and a conclusion that his Honour actually arrived at when one looks at the latter part of his Honour’s decision where he excludes the accident happened in daylight at application book 58, line 50.  He excluded at application book 59, line 30 that there was an inference that the respondent fell into the drain from the gently sloping other sides than the western end.  He seems to have excluded at application book 59, line 42, and so he ought to have, that the respondent fell off the wall while standing on it; it would be unlikely that the respondent would have put himself at that risk.  At application book 59, line 50 he excluded the injury having been caused by assault.

Thus, we would say this was not a case, as his Honour seems to have concluded, where the court was left in the position where it had to speculate about possible causes of the respondent’s injuries and it was not a case where the court was being asked to choose between competing theories because the court itself had, in effect, excluded all the other theories.  It was a case where there was injury consistent with the proven risk and surrounding circumstances that would have led a rational and reasonable person applying the test, the balance of probabilities test, to come to the conclusion that the accident occurred as alleged by the respondent.

In our respectful submission, in relation to the application for special leave, we immediately acknowledge that this Court should approach this matter in the same way as the Court would in relation to, for example, the wrongful exclusion evidence, but we would submit that that is not the end of the matter because this Court ultimately, if special leave is granted, will be in the position of having to determine whether or not it would be in the interests of justice to grant a new trial.  Our argument ultimately will be that it would not be in the interests of justice ultimately, if it came to that, for there to be an order for a new trial because if the proper logical process with the correct starting point had been adopted by the Court of Appeal, it would have arrived at the same conclusion as it did by utilising the opinion of the ambulance officers.

So, your Honours, that is perhaps an answer to your Honour’s question 3, but my primary objective is to address your Honour’s question 3(a) and I do that by saying that the existence of the question mark does not take away from the underlying thesis of the President, namely, that the admissible opinion of the ambulance officers ‑ ‑ ‑

HAYNE J:   What do you say that opinion was?

MR WHEELHOUSE:   That the respondent had fallen 1.5 metres onto concrete, as part of his patient history, that opinion having been derived from what the ambulance officers saw or otherwise perceived was within the meaning of section 78.  In other words, part of their seeing or perception included, as the President found, their first observation of the position of the respondent’s body in the drain when they arrived at 6.57 am in the morning combined with all the other circumstances.

HEYDON J:   What was the point of the question mark then?  It is not a question that was ever asked of the author of the document.

MR WHEELHOUSE:   An ambulance officer would be trained, in our respectful submission, not to be adamant or absolutely conclusive.  It does not detract from his opinion, namely, that the patient’s history was that the respondent – that occurred when he had fallen 1.5 metres onto a drain.  It merely indicates not an absolute certainty in respect of that opinion.  It does not indicate any other alternative hypothesis in a case merely something that would be consistent with training, that is to say, not to be adamant but to put forward one’s best opinion taking into account all the circumstances.

With great respect, your Honours, it could not be otherwise than the ambulance officer held the opinion, otherwise he would not have written it in the second line in a document so crucial, that is when it expressly required him to record the patient history.

HAYNE J:   The position seems to be this, Mr Wheelhouse.  The Court of Appeal has an imperfect record before it.

MR WHEELHOUSE:   I accept that, your Honour.

HAYNE J:   That is the fault of the parties, it is not the fault of the Court of Appeal or the parties’ advisers, and I am not going to allocate blame between them yet.  The Court of Appeal’s reasoning is founded therefore on a necessarily imperfect understanding of the evidentiary record before the trial judge, is that right?

MR WHEELHOUSE:   Yes, your Honour, I accept that.

HAYNE J:   We are in a position where we are therefore, interests of justice in the particular case, to consider whether leave should be given to argue this matter out in Canberra before a Full Court of five of us, on what footing?  That the issue ‑ ‑ ‑

MR WHEELHOUSE:   Well, on several footings ‑ ‑ ‑

HAYNE J:   No, let me finish.

MR WHEELHOUSE:   Sorry, your Honour.

HAYNE J:   On the question of whether the Court of Appeal’s conclusion about causation founded upon an admittedly false basis is to be supplanted by arguments not I think hitherto advanced in this litigation in the Court of Appeal, are they?

MR WHEELHOUSE:   They appear to have been advanced, your Honour.

HAYNE J:   Were they?  Yes, I see.

MR WHEELHOUSE:   Quite strongly.

HAYNE J:   Yes.

MR WHEELHOUSE:   Well, your Honour, I understand what your Honour is putting to me and, of course, section 35A of the Judiciary Act grants us special leave in circumstances where the interests of justice requires.

HAYNE J:   Including in the interests of justice in the particular case.

MR WHEELHOUSE:   Yes, your Honour, I accept that, but all I can really put I hope persuasively to the contrary proposition, namely, that special leave should be granted, is that, as I indicated a moment ago, the question mark does not detract from the underlying thesis of the President even though he dealt with an imperfect record through no fault of his own.  Secondly, that in any event the High Court has the benefit of a notice of contention.  It will come to the conclusion, in our respectful submission, that the Court of Appeal reached the correct result, although by applying incorrect reasoning, if the opinion is excluded.

HAYNE J:   The two footings upon which I put to you that it would seem that it is sought to support the judgment on bases not hitherto argued in this litigation; firstly, I am not conscious of having read in the reasoning of the Court of Appeal any reference to some alternative case being advanced and, secondly, at paragraph 34 of President Allsop’s reasons, the last sentence is, “documentary record made by the ambulance officers” is in his Honour’s opinion, “crucial in the resolution of this appeal”.  There we are.

MR WHEELHOUSE:   I suspect I will fall into the crime of repetition if I say my point again, your Honour.

HAYNE J:   Yes, I understand.

MR WHEELHOUSE:   May I just say that at application book 54, between lines 20 and 30, there is a list of all the factors which were enumerated by the respondent’s counsel from which the court was asked to draw the inference and it would appear that various matters from which the inference could be drawn were put to the court.  However, except for a remark at appeal book 48, there does not seem to have been clearly stated what the argument of the respondent’s counsel on the appeal was.

What the President seems to have done, with great respect to his Honour, is to start off with the proposition Holloway v McFeeters and work his way down through there, but in so doing he has fallen into the error of identifying the correct principle but then proceeded not to apply that principle to the circumstantial evidence that was before the court and that is the difficulty which I would say could be legitimately raised on a notice of contention.  I see immediately the force of your Honour’s position, which is that it is most unfortunate that the court proceeded on the imperfect record.

HAYNE J:   Mr Wheelhouse, having regard to the various matters that you have mentioned, but having regard in particular to the undisputed fact that the Court of Appeal has had before it an imperfect record, what do you say to the proposition that leave should be granted, the appeal treated as instituted and heard instanter and allowed and the matter remitted to the Court of Appeal in effect – this would not be the terms of the order – but in effect for a further hearing on a proper record?

MR WHEELHOUSE:   I am certainly not in a position to consent to such a position.

HAYNE J:   Yes, I understand that – I am not asking ‑ ‑ ‑

MR WHEELHOUSE:   I have attempted to get those instructions, I hasten to add, but I have been unable to achieve that.  I have had difficulty getting instructions in relation to the concession to be made in relation to the exhibit as it has transpired.  In my respectful submission, there is force in what your Honour says, however, in my respectful submission, the appropriate way to deal with the matter is to allow a Full Bench of five to consider the central question, namely, whether in all the circumstances should a new trial be granted.

HAYNE J:   I am not talking about a new trial, Mr Wheelhouse.  I am saying that the Court of Appeal should be given, dare I say it, the courtesy of being put in the position where they determine the appeal on a proper record of what happened at trial, not on this imperfect and insufficient record.

MR WHEELHOUSE:   If that can be done with – I notice one of the judges, Acting Justice Grove, I do not know whether he has a continuing commission, whether that would affect the matter.  I am not trying to avoid your Honour’s question.

HAYNE J:   It would be a matter for the Court of Appeal to determine whether the matter was completely reheard afresh or heard by the same bench or what course it took.  I mean, those are matters for the disposition of the Court of Appeal.

MR WHEELHOUSE:   If the Court pleases.

HAYNE J:   I am anxious to know whether there are arguments that your side of the record, which has the benefit of a judgment at the moment, would wish to advance against what, at least at first blush, would appear to be a means of dealing with the fact that the Court of Appeal did not have before it what it should have had.  I am not having directing any criticism at you about that, it is simply a fact that has happened.

MR WHEELHOUSE:   Yes, your Honour.

HAYNE J:   What do we do about it?

MR WHEELHOUSE:   Your Honour, we are all now minded of section 56, which is quick, just and efficient.  Plainly, a more efficient approach, so long as our position is not prejudiced in relation to raising the argument that I would wish to raise on a notice of contention, plainly it would be more efficient and just for the matter to be remitted to the Court of Appeal to see whether it wishes to reconsider its position with a corrected record.  I would perhaps need instructions about that, but plainly, bearing in mind the requirements of the interests of justice, that would appear to be the end result.

HAYNE J:   Perhaps, Mr Campbell, we should hear from you limited for the moment to the questions that I have just been asking of Mr Wheelhouse, namely, whether there is anything to be said against the proposition, leave granted, appeal treated as instituted and heard instanter, and allowed, remit to the Court of Appeal to be reheard.

MR CAMPBELL:   Your Honours, I have not mentioned this to my learned friend, Mr Wheelhouse, but I have extracted the transcript of a special leave application in the matter of Grljak v Trivan [1995] HCATrans 159, 12 May 1995, where a court hearing a special leave application made orders of the same effect as those your Honour the presiding Justice has been raising with counsel in argument in circumstances that were not wholly the same but not dissimilar. It was a case where the special leave point was said to be that the Court of Appeal had failed to address an argument that was critical to the applicant’s case on appeal. I will not say what happened when the matter was remitted, your Honours.

HAYNE J:   I think I was party to some such orders of the kind I have been indicating in the days of Chief Justice Brennan, but I have not been able to turn them out.

MR WHEELHOUSE:   Your Honour, I have tried to determine what the position was this morning, looking at that very question.  I was unable to find any authority that would enable me to challenge what your Honour is putting forward, so I cannot put forward something positive to reinforce your Honour’s power, but I am certainly not in a position to say I have found something to the contrary.

HAYNE J:   I have no doubt about the power to do it.

MR WHEELHOUSE:   May it please the Court.

HAYNE J:   Yes, there is power to do it.

MR CAMPBELL:   I should certainly then say, your Honours, that the applicant would have nothing further to say about the matter.

HAYNE J:   Yes.  I think the best course is if the Court adjourns temporarily to consider the course it will take in the matter.

AT 2.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.00 PM:

HAYNE J:   Shortly before 7.00 am on 18 July 2002, Craig William Jackson, the respondent to this application, was found unconscious lying in a concrete drain in a park in Lithgow.  He had suffered serious physical injury.  Mr Jackson sued Lithgow City Council, the applicant in this Court, alleging that it was the local Council having the care and management of the park, and alleging further that, as a result of the Council’s negligence, he had fallen over a low unfenced retaining wall and had fallen down approximately 1.5 metres onto the concrete drain where he was found.

In the District Court of New South Wales, District Court Judge Ainslie‑Wallace gave judgment for Lithgow City Council with costs.  Her Honour was not satisfied that the negligence of the Council was a cause of the injuries that Mr Jackson had sustained.  Mr Jackson appealed against the judgment and orders of the District Court to the Court of Appeal of New South Wales and that court set aside the judgment entered at trial and in place gave judgment for Mr Jackson in an amount of a little more than $200,000 together with interest and costs.

The reasons of the Court of Appeal given by President Allsop show that the appeal to that court was allowed having particular regard to one document that had been tendered in evidence at trial.  That document, described as an ambulance retrieval record, was said to have recorded a number of matters relevant to the question of causation.  In his reasons for judgment President Allsop described the ambulance retrieval record as “crucial in the resolution of this appeal”; see Jackson v Lithgow City Council [2008] NSWCA 312 at paragraph 34.

His Honour explained the footing on which the document was crucial by recording that in argument Mr Jackson’s side had pointed to a number of factors which were said to have made the inference that Mr Jackson had fallen over the wall while walking down the hill leading to the drain more likely than any other explanation for the events that had happened.  The factors were set out by President Allsop at paragraph 35 of the reasons, but his Honour said of them that, although he found the matters to which attention was drawn of assistance, they did not “lead to the inference that he” – that is, Mr Jackson – “fell in the way he alleged, but they are at least indicative of, and certainly consistent with, that possibility”.

The ambulance retrieval record was said by President Allsop to be a document from which it could be inferred that its contents were filled out substantially contemporaneously with the events there recorded. His Honour said – see [2008] NSWCA 312 at 37 – that on that document:

adjacent to a heading “patient history” the following appeared:

Found by bystanders – parkland

Fall from 1.5 metres onto concrete.

No other Hx –

As his Honour pointed out, the abbreviation “Hx” meant “history”.

The entry in the record as thus described is now agreed by the parties in the present application to be incomplete in one respect.  It omits from the clause “Fall from 1.5 metres onto concrete” a preceding question mark which, as is evident from the copy of the ambulance retrieval record included in the application book in this Court, was a part of the entry made by the officer.

Examination of the appeal book made available for the use of the Court of Appeal in these proceedings reveals that the exhibit in question was imperfectly reproduced in that appeal book.  In particular, the record as reproduced truncated the ambulance retrieval record in such a way as to obscure, even eliminate, the question mark that preceded the clause “Fall from 1.5 metres onto concrete”.  It is not disputed, as I have already noted, that the record before the trial judge contained the question mark already mentioned. 

The position that thus obtains is that evidence identified by the Court of Appeal as crucial in the resolution of the appeal to that court was not accurately reproduced in the record on which that court had to act.  The truncated form of the ambulance retrieval record was such as to convey a meaning arguably different from the meaning which President Allsop took from the note.  Paragraph 49 of the reasons, when read in conjunction with paragraph 37 of the reasons, shows that President Allsop read the note as recording an assertion by the ambulance officer who completed the form that the plaintiff had fallen in the manner which the plaintiff alleged to be the case in the course of the trial.

In the circumstances where evidence crucial to the resolution of the appeal was not accurately before the Court of Appeal, it is in the interests of justice that there be a grant of special leave to appeal in this matter but that in addition to there being a grant of special leave to appeal, further orders be made to the effect that the appeal be treated as instituted, heard instanter and allowed and that the judgment and orders of the Court of Appeal made on 24 November 2008 be set aside and the matter be remitted for further hearing before the Court of Appeal.

In the circumstances of this case, the appropriate order to make as to the costs of the first appeal to the Court of Appeal and of the proceedings seeking special leave to appeal to this Court is that those costs, that is to say, the costs of the first appeal and the costs of the application for special leave to appeal to this Court, abide the outcome of the further hearing of the appeal to the Court of Appeal.

I should add before parting with this matter that in the course of the application for special leave counsel for Mr Jackson contended that the presence of the question mark on the ambulance retrieval form was no impediment to the formation of the opinion ultimately reflected in the reasons of the Court of Appeal and that the conclusion that negligence was established remained open, notwithstanding the presence or absence of the question mark on the ambulance retrieval form.

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

HEYDON J:   I agree with Justice Hayne’s reasons.

HAYNE J:   There will be orders in the terms I have indicated.  The Court will adjourn.

AT 3.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.34 PM:

THE COURT RECONSTITUTED WITH:

GUMMOW J
HAYNE J
HEYDON J

GUMMOW J:   We are indebted to counsel for returning.  It appears that there may be a problem presented by section 21 of the Judiciary Act with the making of the orders by less than three Justices.  As it happens, I am familiar with the matter and would have supported the orders that were made.  What should be done is for me to pronounce the orders again.  Does counsel have anything they want to say?

MR WHEELHOUSE:   No, your Honour.

GUMMOW J:   Very well then.  For the reasons previously announced orally by Justices Hayne and Heydon the Court now makes the following orders:

1.Special leave granted.

2.The appeal treated as instituted, heard instanter and allowed.

3.Set aside the orders of the New South Wales Court of Appeal made on 24 November 2008 and remit the matter to the Court of Appeal for further hearing of the appeal.

4.The costs of the first appeal to the Court of Appeal and the costs of this Court to abide the outcome of the further proceedings in the Court of Appeal.

MR WHEELHOUSE:   May it please the Court.

GUMMOW J:   Thank you, gentlemen.  We will now adjourn to 10.15 am on Tuesday, 4 August in Canberra.

AT 3.36 PM THE MATTER WAS CONCLUDED