PARTIES: Arif Ordukaya - Appellant Beryl Bishop Hicks - Respondent
JUDGMENT OF: Mason P Meagher JA Sheller JA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 4766/97
LOWER COURT JUDICIAL OFFICER: Judge Cooper
COUNSEL: M L D Einfeld QC/J Anderson - Appellant G I Charteris - Respondent
SOLICITORS: Steve Masselos & Co - Appellant Adrian Batterby - NRMA Insurance Ltd - Respondent
CATCHWORDS: EVIDENCE - Admissibility - Hearsay - Where hearsay evidence admissible under Evidence Act 1995, s64 - Discretion under Evidence Act 1995, s135(a) - 'Unfairly prejudicial' - Whether denial of opportunity to cross-examine maker of statement admitted as exception to hearsay rule unfairly prejudicial to plaintiff TORTS - Negligence - Duty of Care - Duty of occupier - Unstable step in residential premises - Where plaintiff injured while moving refrigerator - Where no evidence that defendant knew of or had reason to suspect defect existed - Whether foreseeable risk of injury - NR
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40397/99 DC 4766/97
MASON P MEAGHER JA SHELLER JA
ORDUKAYA v HICKS
The plaintiff injured himself when the top paver step gave way as he removed a refrigerator from residential premises occupied by the defendant. The plaintiff brought an action for damages against the 92 year old defendant whom the trial Judge found to have been unable to give evidence. A statutory declaration made by the defendant was admitted into evidence under s64 of the Evidence Act 1995.
The trial Judge held that the defendant owed the plaintiff a duty to take reasonable care to prevent injury to him from a defect in the paver of which the defendant knew or, with the exercise of reasonable care, ought to have known. However, his Honour found that the defendant was unaware of any instability in the paver, that she had no reason to suspect that pulling a trolley over it would cause it to dislodge and that the paver was appropriately secured to withstand the weight of people but not that of a laden trolley. Accordingly, his Honour found that there had been no breach of duty of care. The plaintiff appealed from this decision and the decision to admit into evidence the statutory declaration.
Held:
Admissibility of evidence under Evidence Act 1995, s135(a)
(by Sheller JA, Meagher JA agreeing)
Section 135(a) of the Evidence Act 1995 requires, not the prejudice, but unfair prejudice, to be weighed against the probative value of the evidence. Admission of hearsay evidence under s64 of the Act carries with it prejudice to the opposing party as the maker of the statement cannot be cross-examined. However, this danger does not make the prejudice unfair to the point of outweighing material of high probative value such as the statutory declaration in this…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ordukaya v Hicks [2000] NSWCA 180
Case
[2000] NSWCA 180
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute arising from injuries sustained by the plaintiff, Ordukaya, while moving a refrigerator in residential premises owned by the defendant, Hicks. The plaintiff alleged negligence on the part of the defendant, claiming an unstable step caused the accident. The primary legal issues before the court were whether the defendant owed a duty of care, whether the risk of injury was foreseeable, and the admissibility of certain hearsay evidence.
The court was required to determine if the defendant had knowledge of, or reason to suspect, a defect in the step, which was crucial for establishing a foreseeable risk of injury in a negligence claim. Furthermore, the court had to consider the admissibility of a statement made by an unidentified person, which the plaintiff sought to rely on as evidence of the defendant's awareness of the step's instability. The court also examined the application of section 64 of the *Evidence Act 1995* (Cth) concerning the admissibility of hearsay evidence when the maker of the statement is unavailable to give evidence, and the court's discretion under section 135(a) of the same Act to exclude evidence if it is unfairly prejudicial.
The court reasoned that the unidentified statement, even if made, lacked relevant probative significance. It could not be interpreted as an admission by the defendant or as evidence that the defendant should have been aware of the specific risk that led to the plaintiff's injury. Regarding the admissibility of the defendant's statutory declaration, the court found that the trial judge was satisfied, based on medical evidence, that it was not reasonably practicable to call the defendant as a witness due to her frailty. The court also noted that the trial judge was alive to the potential prejudice arising from the inability to cross-examine the defendant and took steps to mitigate this by requiring the defendant's evidence to be supported by other evidence. The court concluded that the discretion to admit the hearsay evidence was not improperly exercised.
The appeal was dismissed, and the plaintiff was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
Part of that context is the significant qualification of the hearsay rule in the Evidence Act itself. In light of this, McHugh J has cautioned against failure to give sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue (Papakosmas v The Queen (1999) 196 CLR 297 at 325-6). The full passage is set out in the judgment of Sheller JA. Sheller JA also points out that the Australian Law Reform Commission in its Interim Report on Evidence, No 26 at par 644 conceived of unfair prejudice as:the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional basis, ie on a basis logically unconnected with the issues in the case. In my view this danger identifies the core notion of “unfair prejudice” and the purpose of the discretion to exclude evidence on that basis. In R v BD (1997) 94 A Crim R 131 at 139, Hunt CJ at CL referred to evidence as unfairly prejudicial “if there is a real risk that the evidence will be misused by the jury in some unfair way”. Citing this, the learned author of Odgers, Uniform Evidence Law 3rd ed (1998) states at p443:Plainly, it is likely that this ‘danger’ will usually only have significance in a jury trial. Where the trial is by a judge without a jury, it will be an unusual judge or magistrate who is prepared to concede that a danger exists that he or she might be “unfairly prejudiced” by evidence. On the other hand the provision is not limited to misuse of the evidence by the tribunal of fact. Unfair prejudice may arise from procedural considerations. Thus an opposing party may be significantly prejudiced by hearsay evidence if unable to cross-examine on a crucial issue in the litigation. Alternatively, the opposing party may be unfairly prejudiced by evidence if prevented from properly challenging its reliability. I agree. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1999] FCA 1269. It is unnecessary to consider whether unfair prejudice extends to substantive unfairness in the obtaining of evidence, as suggested by the primary judge in the present case. If it extends that far, it is certainly not confined to that category of case. Indeed that category is outside the core category of situations to which the discretion is primarily addressed, as I have endeavoured to show. It follows that the discretion miscarried. Non sequitur that there must be a new trial (see Supreme Court Rules, Pt 51 r23). It is true that the plaintiff at trial was deprived of the opportunity to cross-examine the defendant. There are many circumstances where a witness’ evidence may be tendered notwithstanding the inability of the opposing party to cross-examine the witness. For example, the witness may be dead or out of the jurisdiction or otherwise (as with this defendant) unable to attend Court. It was proper to decline to exercise the discretion in the circumstances. Furthermore, Cooper DCJ was clearly alive to the prejudice stemming from the inability to cross-examine the defendant. Because of this, his Honour made it plain that it was necessary to look closely to see whether the defendant’s evidence was supported by other evidence. This is what happened.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The statement was not, according to the plaintiff, made by the defendant. It was made by some person who remained unidentified. It was not an admission made by the defendant or a statement made by some other person in her presence. Ms Moore denied she was present and was not cross-examined to suggest otherwise. If the statement was made, it could not have been related to the characteristic of the step which according to the trial Judge led to its tilting forward when the trolley with the refrigerator loaded on it was dragged up and over its edge. If the statement was made, the speaker could not have been talking about the step’s inability to carry such a load. It could not possibly be evidence, as the plaintiff contended, that the speaker was aware that the step could not carry the load of the trolley with the refrigerator on it when used in the manner described and hence as evidence that the defendant should have been aware of this risk. At best, it must have been a reference to some other defect in the step which needed fixing. There was no other evidence of the existence of such a defect on 20 September 1994. The evidence had no relevant probative significance, no doubt the reason why Judge Cooper ignored it. THE ADMISSIBILITY OF THE STATUTORY DECLARATION In his first judgment of 6 May 1999, Judge Cooper considered, without having read the defendant’s statutory declaration, whether it was admissible under s63 or s64 of the Evidence Act 1995 (the Act). His Honour would not admit the document under s63 and that part of his decision is not challenged. Section 64 of the Act provides:“(1)This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.(2) The hearsay rule does not apply to:(a)oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or(b)a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation,if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.” The defendant tendered, without objection, a medical certificate by Dr Jan Maehl dated 4 February 1999. The plaintiff required no greater formality of proof of Dr Maehl’s evidence and did not require her to be present for cross-examination. Dr Maehl said that the defendant had been her patient for the past twelve months and a patient of the practice for the past four years. Dr Maehl then referred to the defendant’s age and said she was “very frail”. The letter continued:“I believe that she is not able to attend court, nor to have the court attend her on the grounds of her frailty and ill-health.” The trial Judge said, having regard to the terms of that report, he was satisfied it would not be reasonably practicable to call the defendant as a witness. The plaintiff sought to cast doubt upon the doctor’s evidence and in particular drew attention to the evidence of Mr Finey given on 6 May 1999. Mr Finey said that he had seen the defendant the previous Monday. Asked how she was, he said “very frail”. He said she still had her faculties and could carry on a conversation. He said her memory seemed all right sometimes but she tended to “forget a little bit”. In some way, the plaintiff sought to rely on this evidence and the trial Judge’s failure to refer to it as indicative of error or as undermining the conclusion to which he came.