Ordukaya v Hicks - [2000] NSWCA 180

NEW SOUTH WALES COURT OF APPEAL

CITATION: ORDUKAYA v HICKS [2000] NSWCA 180

FILE NUMBER(S):
40397/99

HEARING DATE(S): 9 May 2000

JUDGMENT DATE: 19/07/2000

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

LEGISLATION CITED:
Evidence Act 1995

DECISION:
Appeal dismissed with costs

JUDGMENT:

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 case.

Papakosmas v The Queen (1999) 196 CLR 297, applied.

The trial Judge correctly admitted into evidence the statutory declaration and, in considering the weight to attach to that evidence, correctly took into account the fact that the defendant had not been cross-examined.

(by Mason P, dissenting)

The concept of unfair prejudice under s135(a) is not limited to misuse of evidence by the tribunal of fact and may arise from procedural considerations. Thus an opposing party may be significantly prejudiced by hearsay evidence if that party is unable to cross-examine on a crucial issue in the litigation.

R v BD (1997) 94 A Crim R 131, referred to; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited [1999] FCA 1269, referred to.

Liability

(by Sheller JA, Mason P and Meagher JA agreeing)

There is no tortious duty on an occupier of residential premises to inspect the premises for the purpose of discovering unknown and unsuspected defects.

Stannus v Graham (1994) Aust Tort Rep 91-293, applied.

There was no breach of a duty in this case as the defendant could not have reasonably foreseen a real risk of injury to the plaintiff in bringing the trolley onto the paver as nothing suggested any instability in the paver step.

Northern Sandblasting Pty Limitedv Harris, (1997) 188 CLR 313, distinguished; Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479, applied.

Legislation

Evidence Act 1995

Cases Cited:

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1999] FCA 1269
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Calin v The Greater Union Organisation Pty Limited (1991) 173 CLR 33
CJD v VAJ (1998) 197 CLR 172
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Driscoll v The Queen (1977) 137 CLR 517
Hackshaw v Shaw (1984) 155 CLR 614
Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313
Papakosmas v The Queen (1999) 196 CLR 297
R v BD (1997) 94 A CrimR 131
R v Christie [1914] AC 545
R v Swaffield (1998) 192 CLR 159
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Stannous v Graham (1994) Aust Tort Rep 81-293
Watson v George (1953) 89 CLR 409

ORDERS

Appeal dismissed with costs.

*****

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40397/99
DC 4766/97
MASON P
MEAGHER JA
SHELLER JA

Wednesday, 19 July 2000

ORDUKAYA v HICKS

JUDGMENT

MASON P: I have had the benefit of reading the judgment of Sheller JA. I agree with the orders he proposes and, subject to what follows, with his reasons.
The learned trial judge declined to exercise his discretion to reject the defendant’s statutory declaration. It had been argued that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party (Evidence Act 1995, s135(a)). His Honour noted the submission that the statement was unfairly prejudicial because the plaintiff was denied the opportunity to cross-examine the defendant. He said:
To my mind that is not what is meant by unfairly prejudicial in the context of s135 of the Act. What is meant in the context of the Act is unfairness in the obtaining of the evidence, that is, in the circumstances under which the evidence was procured.
Making every allowance for the fact that these were ex tempore reasons for a ruling on evidence, I would conclude that his Honour read s135(a) too narrowly and improperly fettered his discretion.
At common law, it is doubtful whether otherwise admissible evidence could be rejected on the grounds of prejudice in proceedings other than criminal proceedings (see CDJ v VAJ (1998) 197 CLR 172 at 215 fn(106)). Sections 135 and 136 of the Evidence Act have now introduced such a rule, conferring a very wide discretion upon trial judges. Having regard to the likely common law position and the broad language of those sections, the notion that evidence might “be unfairly prejudicial to a party” should not be confined beyond that which emerges on a fair reading of the sections in context.
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.
The appeal should be dismissed with costs.
MEAGHER JA: I agree with Sheller JA.
SHELLER JA: The plaintiff, Arif Ordukaya, appeals from decisions of his Honour Judge Cooper given in proceedings the plaintiff brought against the defendant, Beryl Bishop Hicks, to recover damages for injuries he suffered on 20 September 1994 while removing a refrigerator from residential premises occupied by the defendant at 4 Mitchell Road, Palm Beach. On 7 May 1999 his Honour gave judgment for the defendant against the plaintiff with costs. The appeal is brought from that decision and also from Judge Cooper’s interlocutory decisions admitting into evidence part of a statutory declaration made by the defendant on 15 July 1998.
The defendant had arranged with Hoover at Meadowbank to have a refrigerator taken away for repair and another refrigerator delivered on loan as a replacement. On 20 September 1994, the plaintiff, who was a self employed courier, went to the premises to deliver the refrigerator to the defendant and to collect the other refrigerator. The plaintiff said that when he arrived at the premises, he went down the driveway to the front door. His knock or ring was answered by a woman he described as middle aged. He told her that he was there to pick up the refrigerator for repair and to leave a loan refrigerator. She told him to go down to the side entrance which led into the kitchen.
The plaintiff drove his truck backwards down the steep driveway to the point where it levelled out. He put the replacement refrigerator onto a two wheeled hand trolley which he wheeled to the right side of the driveway and then on the dirt to the right of the steps down to the kitchen. He took the refrigerator into the kitchen and waited while the refrigerator for repair was emptied. He then loaded that refrigerator onto his trolley and pulled the trolley up to the position of the steps beside the driveway. He said he was dragging it behind him and was walking backwards. Judge Cooper summarised the plaintiff’s evidence about what happened next as follows:
“As he was doing so he said the top paver step gave way as the wheels came onto the edge of it. He said the paver tilted forwards at its front or leading edge and this caused him to lose his footing and he thereupon landed on his buttocks and the fridge landed on top of his chest together with the trolley. He did feel immediate pain in the back but got up. His evidence was that he then went to the front door, knocked again, saw the middle aged lady and told her that he had fallen on the concrete slab. He says that the two of them went together over to the slab and in the course of so doing she remarked, ‘I have been wanting to get this fixed for a while’. He said the two of them then slid the slab from its tilted position onto the driveway.”
The plaintiff lifted up the trolley and loaded it onto the truck. He described the lady he spoke to as middle aged, slim with shoulder length hair. He said there was an elderly lady in the background. He said he did not use the steps to go down because it was easier to use the ground beside.
Another courier, Mr Tilley, said that in about October 1994 he returned the repaired refrigerator to the premises. On that occasion, he saw a lady whom he described as well built, about thirty-five to forty-five with blonde hair. He said to her that he had brought the refrigerator back and asked where she would like it. She said that he should go down the side of the house and added the words “Just be careful of the top step. The other courier had a problem with it.” On taking the refrigerator down to the kitchen, Mr Tilley said that he put his foot on the top step and noticed that it was loose and rocking under his weight. He said he weighed sixteen stone.
The defendant was aged eighty-seven when the accident occurred and ninety-two when the trial was held. Judge Cooper found that she was unable to give evidence. Over objection, his Honour admitted her statutory declaration made on 15 July 1998. The trial Judge said that there were three things of significance in her evidence.
“First, she says that she was not aware of any instability in the step prior to seeing the slab paver out of its normal position. Secondly, she was not aware that anyone was hurt when delivering or removing the refrigerator before receiving the Statement of Claim in this case. Thirdly, she concedes that, some time prior to the death of Mr Meolo [sic Maiolo] in 1996, she saw that the top step was out of its normal position.”
Judge Cooper said that because the defendant’s evidence was in documentary form only, it was necessary to look closely to see whether it was supported by other evidence. His Honour referred to the evidence of two witnesses the defendant called, Mr Finey, who had been a close friend of the defendant since 1960 and a regular visitor to her house two or three days a week, and Kathryn Moore, whose appearance, the Judge noted, was quite consistent with the description of the younger lady given in the evidence of the plaintiff and of Mr Tilley. Both these witnesses gave evidence about the steps and said there was nothing noticeably wrong with them before the date of the plaintiff’s injury.
Ms Moore was emphatic that she had not been there when the refrigerator was either delivered or taken away though she was aware that in 1994 the defendant had a refrigerator repaired. She was not aware of the top step being out of place or of any repairs being done to it. She was never told that anyone had a fall either in delivering or taking away the refrigerator until very much later after the present proceedings began. She identified the signature on the delivery docket for the refrigerator, which was dated 20 September 1994, as being the defendant’s. On that delivery docket was written “go to side entrance”.
The trial Judge described the plaintiff’s and the defendant’s cases as follows:
“Put simply, the plaintiff’s case is that he fell and sustained injury because the top paver was unstable. Furthermore, it was unstable to the knowledge of the defendant and the defendant failed to warn him of its instability. On the other hand, the case for the defendant is that neither she nor her agents were aware of any instability in the top paver step and if the paver did tilt whilst the plaintiff was pulling on the trolley laden with the fridge, then that tilting was not due to any defect discoverable upon reasonable inspection.”
Judge Cooper accepted the plaintiff’s evidence of the dimensions of the paver which was the step. He referred to the evidence of Mr Crews, an expert called by the plaintiff who, as it happened, had never visited the site nor seen the step. In summary, Mr Crews’s evidence was that a weight of greater than 33 kilograms on the leading edge of the step would cause it to overturn, assuming there was no weight towards the rear of the paver. The trial Judge rejected this opinion and said that he was satisfied on the balance of probabilities that the paver was sufficiently secure to prevent any tilting due to the weight of any person walking or standing on its leading edge. His Honour said:
“The very fragility of the balancing point of the paver as calculated by Mr Cruz [sic Crews] demonstrates that, on the assumptions made by him, it would have been so unstable that that instability would have been readily apparent to all who used it, that its instability would have been so apparent that it would be clearly dangerous.
When one realises this situation it is appreciated that either Mr Finney [sic Finey], Mrs Moore and the defendant are deliberately denying the existence of any instability in the paver or they are telling the truth. Having seen and heard Mr Finney [sic Finey] and Mrs Moore in the witness box, I am satisfied on the balance of probabilities that they are telling the truth. Accordingly, I am satisfied on the balance of the probabilities that the defendant, Mr Finney [sic Finey] and Mrs Moore were not aware before the plaintiff’s injury of any instability in that top paver step.”
Judge Cooper was satisfied from the plaintiff’s evidence that the paver tilted down with its leading edge. He examined the mechanics involved in dragging the trolley with the refrigerator on it over the edge of the step. He said:
“On the probabilities I think that the overall weight was probably closer to slightly in excess of one hundred and fifty kilograms. Had the plaintiff’s weight of ninety kilograms been bearing down on the back end of the paver which was slightly more than twice the length of the overhand, then it is unlikely that the weight of the trolley would have caused it to tilt forwards. This fact, plus the respective dimensions of the trolley and the depth of the paver, make it more probable than not that the plaintiff was pulling and at the same time jolting the trolley wheels up over the leading edge of the top paver at a time when he was standing on the ground immediately behind the paver.
It was the combination of the weight of the laden trolley plus the force used to pull or jolt the wheels of two hundred and sixty millimetre diameter up and over the riser of two hundred millimetres on to the top paver which caused that paver to become dislodged from its fastenings and to tilt forwards. As the paver tilted forwards, the trolley would have moved down suddenly thereby causing the plaintiff to lose his footing, probably to slip, and thereby to fall on his back and end up with the trolley and the fridge on top of him.
In short, I am satisfied on the balance of probabilities that the paver was appropriately secured to withstand the weight of people walking on it but it was not secured sufficiently to withstand [sic the weight] of the laden trolley of about one hundred and fifty kilograms being forcibly pulled up over its leading edge.
One might ask here, how is it that the paver did not tilt when the plaintiff was in the course of taking the refrigerator into the house beforehand. The answer lies in the evidence of the plaintiff, which I accept on this point, that he wheeled the trolley on the ground beside the steps and did not use that top paver step. But even if he had then used the steps the force exerted on the leading edge of the top paver would not have been as great as the force used to pull the laden trolley up the two hundred millimetre riser and onto the top paver. It is also worthy of note that Mr Finney’s [sic Finey’s] description of the delivery of the kiln refers only to descending the steps with that load.”

Turning to consider whether the plaintiff had satisfied the Court that the failure to have the pavers so secured was a breach of the defendant’s duty of care, his Honour referred to this Court’s decision in Stannous v Graham (1994) Aust Tort Rep 81-293. In that case, Handley JA, with whom Meagher JA agreed, said at 61,564-5:
“This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects.”
After referring to two other decisions of this Court, Handley JA continued:
“Mr Black [who appeared for the respondent/plaintiff] did not refer us to any authority to the contrary of these decisions and in particular did not refer us to any case which establishes that an occupier of residential property has a duty to inspect the premises for the purpose of discovering unsuspected defects.
Indeed the decision in Watson v George (1953) 89 CLR 409 supports the view that no such duty existed in the present case. This decision predates Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 but was not referred to in that case and I can see no reason why it should be treated as impliedly overruled.”
Judge Cooper next considered whether this view of the law had been overruled by the High Court in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 and concluded that it had not. His Honour said:
“Although four of the seven judges came to the same conclusion they did so by somewhat differing routes and upon differing bases. Having considered that case it is my view authority for the proposition that the defendant in the present case owes a duty of care to the present plaintiff to take reasonable care to prevent injury to him from a defect in the subject paver of which the defendant knew or, with the exercise of reasonable care, ought to have known.
On the facts of the Northern Sandblasting case, it seems to have been held in the light of the history of electrical work done on the premises that the defect in the wiring was one which ought to have been discovered on reasonable inspection.”
The trial Judge saw the question to be whether the plaintiff had satisfied the Court on the balance of probabilities that a reasonably prudent occupier in the position of the defendant ought to have foreseen that the paver would become dislodged on the application to its leading edge of the weight and jolting force occasioned by pulling the laden trolley up and onto it. His Honour observed that the steps were normally used for pedestrian traffic. Use for carrying a trolley with a heavy weight on it was abnormal. He said:
“The evidence which I accept is that the defendant had no actual knowledge of any instability or potential for instability in the paver. The defendant had no reason to suspect or any warning that the pulling of the laden trolley up onto this paver would cause its dislodgment.
Accordingly the plaintiff has failed to satisfy the Court on the balance of probabilities, that the defendant ought to have foreseen with the exercise of reasonable care that the paver would become dislodged in the course of the activity carried out by the plaintiff. It follows that the plaintiff has failed to satisfy the Court on the balance of probabilities, that the defendant was in breach of her duty of care to the plaintiff and there will therefore be judgment for the defendant against the plaintiff.”
It was a significant feature of the plaintiff’s argument in this Court that, in reaching his conclusion, the trial Judge did not mention the evidence that the middle aged lady who came with the plaintiff to the concrete slab after the accident had remarked: “I have been wanting to get this fixed for a while”. The plaintiff submitted that the trial Judge must have accepted that this was said and accordingly that, before the accident, the step was defective to the knowledge of the defendant. The failure to deal with this evidence destroyed the validity of the ultimate finding. Moreover, the evidence was significant in determining whether or not to allow the defendant’s statutory declaration to be admitted into evidence. There are several problems with this submission.
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.
Mr Finey was not qualified in any way to express an opinion as to whether or not the defendant was able to attend court or have the court attend her and, understandably, was not asked to express such an opinion. The only evidence about the defendant’s capacity was the evidence of Dr Maehl which stood unobjected to and unchallenged. The plaintiff also submitted that there was no reason why the defendant’s evidence could not have been taken on commission. But Dr Maehl’s report is to the effect that it could not have been so taken. Nor, so far as I can see, was it ever suggested to the trial Judge that the evidence should have been taken in that way. Other objections to the admission to the evidence under s64 which were taken at the trial and with which his Honour dealt were not pressed. In my opinion, it was open to his Honour to conclude, as he did, that it was not reasonably practicable to call the defendant as a witness to give oral evidence. The statutory declaration was admissible under s64.
Having read the statutory declaration, in a separate decision on 6 May 1999, his Honour dealt with the submission that he should exercise his discretion under s135(a) of the Act to reject it because its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Section 135 of the Act provides:
“General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”
His Honour recorded a submission by the plaintiff that the statement was unfairly prejudicial because the plaintiff was denied the opportunity to cross-examine the defendant. His Honour said:
“To my mind that is not what is meant by unfairly prejudicial in the context of s135 of the Act. What is meant in the context of the Act is unfairness in the obtaining of the evidence, that is, in the circumstances under which the evidence was procured.”
The plaintiff submitted that this passage revealed error going to the exercise of his Honour’s discretion under s135.
Any understanding of the way in which s135 works, where evidence is admissible under s64, must start by accepting that, conformably with s64, the hearsay rule does not apply to the statement. The admission of a document of probative value against a party involves prejudice to that party. However it is not prejudice, but unfair prejudice, which must be weighed against the probative value of the representation. The weighing exercise required is not dissimilar from that which came to be known in the criminal law as the rule in R v Christie [1914] AC 545 at 564-5. In R v Swaffield (1998) 192 CLR 159 at 183 Brennan CJ referred to that as a category of exclusion of evidence including voluntary confessional statements and said:
“That category consists of evidence the probative value of which is small but the undue prejudice which it is likely to produce is substantial.”
In Driscoll v The Queen (1977) 137 CLR 517 at 541 Gibbs J, as his Honour then was, spoke about the discretion of a judge presiding at a criminal trial to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. “The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.” In this context the obtaining of evidence such as a confession in a way unfair to the accused would be a matter of unfair prejudice to be taken into account in exercising the discretion under s135.
In submitting that the trial Judge erred, Mr Einfeld SC, who appeared for the appellant, referred us to a passage in the joint judgment of Handley and Beazley JJA, with which Santow AJA agreed, in Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 401:
“The present difficulties have arisen because s64 read with s62 now allows first-hand hearsay. The first ruling allowed hearsay from Mrs McLean about events witnessed by the plaintiff as proof those events had occurred. The weight to be given to such evidence depends on the honesty and reliability of the person who made the representation, and the person giving the evidence.
A party against whom such evidence is tendered must be free to challenge any link in the chain, or the chain as a whole. It would be unfairly prejudicial within s135(a) for evidence to be tendered against a party who could not contest it.”
In Papakosmas v The Queen (1999) 196 CLR 297 at 325-6, McHugh J said:
“Some recent decisions suggest that the term ‘unfair prejudice’ may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act. In Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike [No 1] (unreported; Federal Court of Australia; 1 September 1995), Beaumont J used his discretion under s135(a) to exclude the transcript of a bankrupt, which would otherwise have been admitted as an exception to the hearsay rule pursuant to s63, on the basis that the prejudicial effect of being unable to cross-examine the maker of the representation on a crucial issue in the litigation substantially outweighed the probative value of the evidence. In The Commonwealth v McLean, the New South Wales Court of Appeal also used s135(a) to exclude hearsay evidence otherwise admitted via the exception contained in s64 on the basis that the defendants were prevented by other evidentiary rulings from effectively challenging the evidence. It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of ‘prejudice’ in a context of rejecting evidence for discretionary reasons.”
In the Interim Report No 26 of the Australian Law Reform Commission at para 644, the following is said:
“By risk of unfair prejudice is meant 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. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.”
The purpose of s64 is to remove the obstacle of the hearsay rule in cases like the present where a party, due to age and ill health, is unable to give evidence and may suffer great injustice as a consequence. Inevitably the removal of the hearsay rule as an obstacle to admitting the statement carries with it prejudice to the other party. One such prejudice is that the witness whose statement is put in evidence cannot be cross-examined. Historically, one justification for the exclusion of hearsay evidence has been “the irresponsibility of the original declarant, whose statements were made neither on oath, nor subject to cross-examination”. The learned authors of Phipson on Evidence, 15th ed, para 25-06 write:
“No single principle can be assigned as having operated to exclude hearsay generally, or from any ascertainable date. For several centuries both admission and exclusion flourished incongruously side by side, juries being allowed to act upon hearsay as part of their local ‘knowledge’, while witnesses were debarred from repeating it because it was not ‘testimony.’ Later, when exclusion in both cases had become the rule, the principle invoked was either the convenient and all-embracing ‘best-evidence’ idea, or, less often, the sort of privity implied in the maxim res inter alios acta or dicta. In more recent times, rejection, even where such evidence as the ‘best’ obtainable, has been based on its relative untrustworthiness for judicial purposes, owing to (1) the irresponsibility of the original declarant, whose statements were made neither on oath, nor subject to cross-examination; (2) the depreciation of truth in the process of repetition; and (3) the opportunities for fraud its admission would open; to which are sometimes added (4) the tendency of such evidence to protract legal inquiries; and (5) to encourage the substitution of weaker for stronger proofs. The absence of an oath and of cross-examination, however, appear to be the only essential objections; even the production of the witness being valuable mainly as a means of ensuring cross-examination, and only secondarily as affording an opportunity of observing demeanour. The latter advantage, indeed, is in many cases waived without entailing the rejection of the evidence.”
The irresponsibility referred to endures when, in the particular circumstance that it is impracticable for the witness to be called, the legislature provides that the hearsay rule is not to apply. But I do not think that it can be said that such irresponsibility makes the prejudice unfair to the point of outweighing material of high probative value such as this statutory declaration. It is not necessary in this case to decide whether it ever could or whether it is confined to situations, like those in the cases to which I have referred, where the statement has been obtained by unfair means or has a tendency wrongly to excite the fact finder’s emotions and is of little probative value.
Judge Cooper gave an illustration of the ordinary case where s135(a) might apply. I am not persuaded that Judge Cooper erred in his approach to the question.
In any event, despite the various other matters relied upon by Mr Einfeld the statutory declaration was, in my opinion, rightly admitted into evidence. Of course, in determining what weight should be given to its contents, the trial Judge had to bear in mind, as he did, that the defendant had not been cross-examined. Some of the matters raised related to inconsistencies or unreliability. None of these things required the Judge to exclude the statutory declaration nor would exclude its admission in the proper exercise of discretion. This ground of appeal fails.
NEGLIGENCE
The test of the defendant’s liability is that stated in the judgment of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3 and approved by the majority of the High Court in Australian Safeway Stores Pty Limited v Zaluzna at 488. Deane J said at 663:
“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A pre-requisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”
The plaintiff submitted that Judge Cooper did not apply the correct test. The plaintiff relied upon what was said by Fullagar J in Watson v George at 424, by Mason CJ, Deane, Toohey and McHugh JJ in Calin v The Greater Union Organisation Pty Limited (1991) 173 CLR 33 at 38 and by Brennan CJ in Northern Sandblasting Pty Limited at 338-9 to support the proposition that the duty owed by the defendant in this case was one to see that the premises were as safe for the contemplated purpose of the entry by the plaintiff as reasonable care and skill on the part of anyone could make them. It was said that, in the present case, that duty applied because the plaintiff entered the premises “under contract”. But with due respect, as appears from the judgment of Brennan CJ in Northern Sandblasting at 337, those cases and the duty they describe are cases concerned with persons who have contracted for and paid for their entry onto the occupied premises or those whose entry has been paid for. The typical example would be Miss Calin who bought a ticket to attend a cinema and was injured when she entered the darkened auditorium. Further discussion is to be found in some of the judgments in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 445, 460 , 478 and 486. Nothing, it seems to me, detracts from the correctness of what Handley JA said in the passage in Stannus v Graham to which Judge Cooper referred.

The trial Judge found that the defendant was not aware, before the plaintiff’s injury, of any instability in the top paver. The paver was appropriately secured to withstand the weight of people walking on it but not secured sufficiently to withstand the weight of the laden trolley of about 150 kilograms being forcibly pulled up over its leading edge. Undoubtedly, the defendant owed the plaintiff a duty of care. But, the defendant could not reasonably foresee a real risk of injury to the plaintiff in using the steps to bring the re frigerator up on the trolley. On his Honour’s finding, there was nothing to suggest any instability. Accordingly, the defendant was entitled to a verdict and the appeal from that verdict fails.
ORDERS
In my opinion, the appeal should be dismissed with costs.

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LAST UPDATED: 19/07/2000