Peace v Transport Accident Commission (Ruling)
[2010] VCC 1465
•20 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05787
| IAN VICTOR PEACE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 October 2010 |
| DATE OF RULING: | 20 October 2010 |
| CASE MAY BE CITED AS: | Peace v Transport Accident Commission (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1465 |
RULING
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Catchwords: Admissibility of hearsay evidence – s.55, s.64 and s.135 Evidence Act 2008.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Henry Carus & Associates |
| Ms N Wolski | ||
| For the Defendant | Mr D E Curtain QC with | Solicitor for the Transport |
| Ms R N Annesley | Accident Commission | |
| HIS HONOUR: |
1 This ruling concerns evidence proposed to be led on behalf of the plaintiff by a Mr Henry Carus, the plaintiff’s solicitor.
2 The proceeding concerns a claim for damages by the plaintiff for injuries sustained in a motorcycle accident on 15 June 2006. On that day, the plaintiff was travelling along the Colac-Forrest Road near Colac upon his motorcycle when he alleges a large trailer being towed by a truck and proceeding towards him, crossed over the centre dividing line. This caused him to take evasive action by moving to the left of the carriageway, as a result of which he entered upon a broken bitumen road surface, lost control of the motorcycle, went through or over a fence and into an adjoining paddock. As a result of the incident, he alleges he suffered significant injury, in particular to his spine and right ankle.
3 In evidence, he said the driver of the truck did not stop after the incident, and remains unidentified. A significant issue in the proceedings was whether or not the truck and trailer caused the plaintiff to run off the road, and whether they were present at all. The defendant alleges the plaintiff concocted his evidence in relation to the truck for the purpose of obtaining compensation.
4 On 6 September 2006, the plaintiff completed and signed a TAC General Claim for Compensation form.[1] In paragraph 6, the plaintiff was asked:
“Please describe in your own words how the accident happened?
The following was completed on the form:
“Travelling along Colac-Forrest Road, down decline. Crossed creek bridge. Road surface bumpy causing loss of control. Ended up in paddock.”
[1] Exhibit B
5 The plaintiff drew a diagram indicating the circumstances of the incident.
6 In paragraph 14, the plaintiff was further asked:
“Was any other vehicle involved in the accident?”
He answered:
“No.”
7 Subsequently, the plaintiff retained solicitors, Henry Carus & Associates, to act on his behalf in the common law claim. He gave evidence that he completed a second TAC Claim for Compensation Form, in the presence of his solicitor, Mr Henry Carus, on 24 October 2006.[2] He said that he completed the second form as he had forgotten he had previously completed and signed the first.
[2] Exhibit C
8 The thrust of much of the cross-examination by Mr Curtain, on behalf of the defendant, was to the effect that there was no truck nor trailer present at the time of the incident, and the plaintiff, travelling at approximately 100 kilometres per hour, had driven onto the rough surface to the side of the carriageway, lost control, resulting in injury.
9 Evidence was given by a Mr Anthony Hann, an ambulance officer, who attended the plaintiff at the scene of the incident and said that he was told by the plaintiff at the scene that he [the plaintiff] had swerved to miss a truck, had lost control of the motorcycle and ended up in the gravel on the side of the road and eventually into the paddock nearby. Mr Curtain put to the plaintiff that at some time at or before attending upon Mr Carus to complete the second claim form, he had invented the presence of the truck and trailer.
10 The issue which I am called to determine concerns the evidence which Mr Mighell proposes to adduce from Mr Carus as to what was said in the course of his interview with the plaintiff at the time of the completion of the second claim form on 24 October 2006. Mr Mighell admitted that the evidence of what was said to Mr Carus was hearsay, but was admissible under the provisions of the Evidence Act 2008 (“the Act”) as to the truth of what was said by the plaintiff to Mr Carus, that is, that the accident occurred because of the presence of the truck and trailer, in particular the trailer crossing onto the plaintiff’s side of the carriageway.
11 Mr Curtain objects to the admission of the evidence.
12 It is not suggested that the calling of Mr Carus was to rebut an allegation of recent invention. It is not a situation where the plaintiff was cross-examined that he had recently invented the presence of the truck and trailer and Mr Mighell then sought to call evidence to rebut that presumption from persons whom the plaintiff had described the circumstances of the incident to at an earlier time. Rather it is evidence called as to the truth of the presence of the truck and trailer.
13 PART 3.2 of the Evidence Act 2008 deals with hearsay. Section 59(1) provides that evidence of a previous representation made by a person is not admissible to prove the existence of the fact. There are various exceptions to that hearsay rule. Section 63 of the Act provides an exception to the hearsay rule where the person who made the representation is not available to give evidence of the asserted fact. Section 64 provides for the exception to the hearsay rule where the maker is available. It states:
“64 Exception—civil proceedings if maker available (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)
evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) …—
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.
(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person; or
(b)
a person who saw, heard or otherwise perceived the representation being made.
(4) … .”
14 Further, s.67 of the Act requires that if firsthand hearsay evidence is to be adduced in accordance with s.64(2), notice in writing is required to that effect. Such a notice must state the particulars relied upon in arguing that the hearsay rule does not apply. If notice is not given, a party may apply to the Court and a court, in its discretion, may grant leave for the evidence to be given notwithstanding the party’s failure to give notice.
15 Section 135 of the Act provides a general discretion to exclude evidence. It states:
“135 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.”
16 Section 36 grants a court discretion to limit the use of evidence which might be unfairly prejudicial or misleading or confusing.
17 The evidence proposed to be called of Mr Carus is “firsthand” hearsay.[3]
[3] See Section 62
18 In its Explanatory Memorandum dealing with s.64(2), the Australian Law Reform Commission[4] said:
“It is intended that in civil trials the problem of whether a party should or should not have to call the maker of the previous representation who is available should be resolved so far as possible by the parties. The proposal has the effect that evidence of the previous representation, whenever made, may be given in evidence if notice is given to the other party and no objection is taken, or if the court grants leave. The judge may refuse to grant leave but reserve the question of costs. Rules of court enable leave of the court to be obtained prior to trial. The proposal also enables application to be made at the trial, where notice of objection is given for leave to tender the evidence without calling the maker of the previous representation.”
[4] ALRC 26, Vol. 1, paragraph 688
19 The purpose of s.64(2) is to permit the calling of firsthand hearsay evidence where it would cause undue expense or delay, or would not be reasonably practicable, to call the person to give the evidence. Likewise, s.63 provides that firsthand evidence may be given of a fact where the original maker is not available. There is no suggestion that the best evidence of what occurred could not be called through the plaintiff. In fact, he has given that evidence. The purpose of Mr Carus giving the evidence that he was told by the plaintiff of the existence of the truck and the trailer does no more than attempt to emphasise the truth of the fact.
20 However, s.64(3) contemplates that the representation has already been the subject of evidence. It provides that the hearsay rule does not apply to evidence of the representation that is given by another person. Prima facie, the evidence of Mr Carus is, in my view, admissible under that section.
21 No notice, as is required by s.67, has been given. In allowing such evidence, the Court’s discretion under s.67(4) may be granted, which discretion may be subject to such conditions as the Court thinks fit.
22 Even if the evidence is admissible, Mr Curtain submits I ought to exercise the Court’s discretion under s.135. However, I do not see any basis upon which it could be said that the probative value of the evidence is substantially outweighed by any unfair prejudice to the defendant. It is not a matter of the evidence of Mr Carus being unfairly prejudicial, but rather that it is adduced to give emphasis to the truth of the fact. Sub-sections (b) and (c) of s.135 do not have application.
23 Section 56 of the Act provides that in order to be admissible, evidence must be relevant. “Relevant evidence” is defined in s.55(1) as:
“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
24 As I understand the evidence proposed to be called through Mr Carus, it is relevant in that it goes to the probability of the existence of and the part played by the truck and the trailer in the incident. It therefore meets the relevancy test.
25 Notwithstanding, however, the admissibility of the evidence under the provisions of the Act to which I have referred, I have some reservations about it. Its intention is to emphasise the presence of the truck and the trailer by calling witnesses who spoke to the plaintiff at one time or another where he told them of the existence of this vehicle. As such, I propose to direct the jury that in assessing the weight of this evidence, that the fact that an account of events is repeated on one or several occasions does not make the evidence any more reliable.[5] I propose to charge the jury:
[5] See R v Kesisyan [2003] NSW CCA 259 at paragraph 11.
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That the purpose of calling the evidence is to do no more than emphasise the version of events given by the plaintiff. The fact that the plaintiff’s version of events was repeated to Mr Carus in October 2006 does not necessarily make the evidence any more reliable.
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That these are matters to be taken into account when the jury go to assess the weight of this evidence.
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