Peterson, Mark v Melbourne Stadium Services Pty Ltd
[2009] VCC 1488
•6 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-04721
| MARK PETERSON | Plaintiff |
| v | |
| MELBOURNE STADIUM SERVICES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 and 5 November 2009 |
| DATE OF RULING: | 6 November 2009 |
| CASE MAY BE CITED AS: | Peterson, Mark v Melbourne Stadium Services Pty Ltd (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1488 |
RULING
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Catchwords: Admissibility of documentary evidence – refreshing memory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with | Slater & Gordon Ltd |
| Mr A E A Macnab | ||
| For the Defendant | Mr M R Titshall QC with | Minter Ellison |
| Ms M Taaffe | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff, Mark Peterson, seeks damages for injuries suffered in the course of his employment with the defendant, Melbourne Stadium Services Pty Ltd, on 24 August 2004, when, according to paragraph 7 of his Statement of Claim, the plaintiff:
“Slipped and fell whilst getting onto a machine known as the ‘scrubber
machine’.”
2 On 5 November 2009, Mr Jewell, on behalf of the plaintiff, sought leave to add the words:
“or proceeding to get”
after the word “getting” above. I have not yet ruled on that application.
3 The proceeding commenced before a jury on 4 November 2009. The first witness to be called was Mr Ty Valentine Franklin, a co-worker of the plaintiff who gave evidence that he was in the vicinity when the incident occurred on 24 August 2004.
4 In opening, Mr Jewell indicated to the jury that the plaintiff had little if any recollection of the events which led to his injuries, and so he relies, at least in part, upon the evidence of Mr Franklin to establish whether the defendant was negligent or in breach of its duty as occupier, which was a cause of the plaintiff’s injury, loss and damage.
5 Mr Franklin was, like the plaintiff, employed as a casual cleaner working at the Telstra Stadium (now known as Etihad Stadium). He commenced in that employment in 2003 and continued with the defendant until approximately 2005 when cleaning at the stadium was undertaken under contract by another cleaning company “Cleanevent”. He has worked for that company to the present time.
6 In particular, Mr Franklin worked using a large scrubbing machine known as a Tenant 7400, as depicted in the first three photographs tendered in evidence.[1]
[1] Exhibit B
7 Mr Franklin gave the following description of what occurred:
“Q: Did you see the accident?--- A: Yes. Q: What did you see?--- A: I saw Mark fall onto the machine. . . . Q:
Can you describe what you recall?---
A:
I remember I was picking up some chemicals and Mark was walking to the machine. I bent down. As I looked up his leg – I saw his leg come ‘flying out’.
Q: Flying out from where?--- A:
From near the machine, from that machine area from where he was going. His right leg came flicking out. As I was standing there he was crashing into the machine.
Q: Are you able to say whether or not he got into the machine or got
to the machine?---A: I couldn’t really say. I couldn’t really tell you if he got into the
machine or not.Q: What did you observe about him?--- A: What did I observe? Q: Afterwards, what did you see?--- A: After the accident? Q: Yes.--- A: I just called up for help and I went to Mark’s aid. Q: Was Mark able to communicate with you?--- A: No, he was knocked out for a couple of minutes and I brought him
to and he was just moaning and groaning.Q: Did you make a report of what happened at the time?--- A: Yes. Straight after I got back from the hospital I made a report to
the security.Q: Did you make the report in writing or orally, verbally?--- A: Verbal. Q: To whom did you report?--- A: To the security guard, Joe. Q: Was there a procedure for making reports of things like that at
work?---A: I suppose that would have been the procedure. I am not too sure. . . . Q:
What is your recollection now thinking back to what happened in
August 2004, like?---A: It’s still a bit blurry. It’s still the same. Q: Was your recollection better back then than what it is now?--- A: Yes. Back then it would have been a lot better. Q: When you made the report, did you report accurately what you
had seen?---A: Yes. . . . Q:
When the security was writing it out, did you see whether he was writing by hand or typing it into some sort of typed form or what?---
A: I think he typed it from memory. . . .
I then asked:
Q: Into what?--- A: Just typed it up from memory. Q: What, into a computer?--- A: Into a computer, yes, I think so.”
8 At that point Mr Jewell called for the production of the report.
9 Further, on 5 November 2009, Mr Franklin gave the following evidence:
“Q: Can you recall what time that [the accident] occurred?--- A: Around 5 o’clock I think. . . . Q:
That is 5 o’clock in the morning are you talking about?---
A: Yes. Q: Whereabouts in the complex did the accident occur?--- A: Up on level 3, around aisle 4-5. Q: So inside the stadium itself?--- A: Yes. . . . Q:
You said yesterday your actual memory of the accident was
blurry?---“
At this point there was an objection by Mr Titshall.
“Q: Now what’s your memory of the accident like?--- A: Still the same. My memory of the accident? Q: Yes. A: I’ve still got the same recalling of it. Q: When you say the same recalling of it, you mean the same
compared to when?---A: Yesterday. Q:
The question is though, as your memory is now and as of yesterday, how good is it in relation to what happened on that day?---
A: What do you mean? I can’t really follow. Q: Are there parts you can’t remember or not?--- A: Yes. There’s parts I can’t remember. Q: You said yesterday that – in response to a question: ‘Are you able to say whether or not he got into the machine or
got onto the machine?’---
‘I really can’t say, I really couldn’t tell you if he got onto the
machine or not.’? – Yes.
Q: Are you able to say whether or not he got to the machine or
whether he was short of the machine?---A: I would say he would have got to the machine. Q: I don’t want you to say ‘would’, I want you to say from your
memory.A: I’m not too sure. I couldn’t really say either way. Q: You said yesterday that he had a fall onto the machine or he fell
on the machine?---A: Fall, fell, what’s the difference? Q: What’s your actual recollection as to what part of his body? – fell
on the machine?---A: Yes. This part of it, the head to about this. (The witness indicated the area between his head and the top of his
chest).
Q: By that do you mean that the front part of his body?--- A: Yes, his front face went like that (indicates) smack down. Q: Then what happened?--- A: He was lying there I think and then he just rolled off sort of thing
and hit the ground.. . . Q: At that point in time what was the state of the ground immediately
around the machine and the state of the machine itself?---A: Wet. . . . .”
10 In response to the call for the production of the Incident Report referred to in Mr Franklin’s evidence, Mr Titshall produced two documents. The first document is entitled “Incident Report Form”, and recounts the following:
“Specific location where the incident occurred – Level 3, aisle 1.
Date and time of actual incident – 24/8/04 - 7.37.
Date and time reported – 24 August 04 – 11.35.
Incident Details: As witnessed by me – ‘I asked cleaner Mark Peterson to move the 7400 machine. As Mark stood onto the machine his right foot slipped on the metal cover. Mark’s head came crashing down onto the 7400 hitting his face and then falling backwards hitting his back/head on the ground. I then went to his aid and saw he was unconscious and not responding to my words. After two minutes Mark then came conscious and I immediately called for assistance via cleaner, John Chan, and the security office. Mark then explained his face, head and right wrist was hurting. Mark then asked me to go with him in ambulance and contact his family.’
Injured person – Mark Peterson
First aid and treatment given by – Ty Franklin
Witness details – Ty Franklin
Details of person completing form – Ty Franklin.”
11 The second document is also entitled “Incident Report Form” and recounts:
“Incident location and summary – Level 3, aisle 1.
Date and time of actual incident – 24/8/04 - 7.37.
Date and time reported – 24/8/04 – 9.00.
Incident details: Witnessed by me – ‘At approximately 7.37 security officer, Wayne Connell, received a call from cleaner, John Chan, explaining that cleaner, Mark Peterson, had fallen and needed emergency first aid and an ambulance. Wayne then called an ambulance at 7.39 and despatched security officer, Joe Dell’Olio to level 3, aisle 2. Upon arrival, Joe found Mark Peterson on the ground conscious with injurys (sic) to his face, back of head and right wrist. Along with customer service attendants, Aaron Smith and Les Cornwell, and cleaner, Ty Franklin, we immobilised Mark until ambulance arrived. At 7.46 hours ambulance arrived at La Trobe Street bollards where security officer, William Blackwell, let them on and customer service, Aaron Smith, escorted ambulance via south-west goods lift number 1 to level 3, aisle 2. Ambulance officers treated Mark Peterson and informed us they were taking Mark to the Alfred Hospital. All staff assisted ambulance officers and escorted them to ambulance vehicle. Cleaner, Ty Franklin, went into ambulance. Ambulance offsite at 8.26 hours’.
Injured person – Mark Peterson.
Type of injury – face, head and wrist.
First aid treatment given by – Joe Dell’Olio.
Details of person completing form – Connell and Dell’Olio – MSL
Security.”
12 Both documents were discovered by the defendant before trial.
13 Mr Jewell seeks to read to the jury the first several sentences of the first Incident Report, namely:
“‘I asked cleaner Mark Peterson to move the 7400 machine. As Mark stood onto the machine his right foot slipped on the metal cover. Mark’s head came crashing down onto the 7400 hitting his face and then falling backwards hitting his back/head on the ground. …”
14 This, said Mr Jewell, was to be put to the jury as evidence by Mr Franklin of the fact of what occurred.[2]
[2] Transcript 102
15 Mr Jewell further sought to tender the document as a business record of the defendant company pursuant to the provisions of the Evidence Act 1958. He acknowledged, however, there was no sufficient evidentiary basis for the admission of the document on that ground, to this point.
16 There is a significant difference in what was said in the Incident Report on the one hand and the evidence of Mr Franklin on the other. Essentially, in the former it is said that the plaintiff’s right foot slipped as he stood on the machine. In his evidence, Mr Franklin said he remembered picking up some chemicals and the plaintiff was walking towards the machine. Then, as he looked up, he saw the plaintiff’s right leg come “flying out” and his head and upper chest struck the machine. He was, however, unable to say as to whether the plaintiff was at or upon the machine at the time.
17 Further, the “details of the person completing form” was said to be Mr Franklin, yet his evidence was that he made a verbal report to a security guard, Joe, who typed it into a computer. Subsequently, Mr Franklin admitted that he was unable to read. It is clear he would have been unable to prepare the Incident Report.
18 The basis upon which Mr Jewell claims the statement contained in the first Incident Report could be read to the jury was that the witness’s recollection of precisely what occurred at the time of the incident was deficient, blurry and his memory of what occurred was a lot better then, than it is now. Mr Jewell said the document was produced when the report referred to in Mr Franklin’s evidence[3] was called for, and, inferentially, that was the report said to have been made by him.
[3] Transcript 60
19 Mr Jewell further relies upon the authority of R v Alexander & Taylor.[4] That case was concerned with a witness who had no recollection at all as to matters which occurred in the course of an assault some years prior to the trial, save for some matters not in contention. He had refreshed his memory some short time prior to the trial from a statement he had made at about the time of the assault, which was not called to be produced in the course of evidence. It was submitted that the evidence ought be ruled inadmissible as the only evidence of the witness was that gleaned from his statement, rather than from actual memory. The Court held[5] that a witness may properly give evidence of events of which he no longer has any independent recollection, simply by reference to some written record which he made or adopted shortly after those events occurred and at a time when he did recall them, provided the witness was prepared to swear to the accuracy of the record. One ground of the appeal was that the document referred to had not been produced in the course of the trial. The Court of Appeal, however, held that there was no basis for the latter aspect of the appeal given the document was not called for by counsel. In my view, the principles established bear little application to the facts of the current proceeding.
[4] [1975] VR 741
[5] at page 749
20 Mr Titshall objects to either the tender of the document, or reading of the parts of it to the jury on two grounds. Firstly, the evidence of Mr Franklin was clear. He did not observe the plaintiff stand on the machine and did not see his right foot slip. That evidence was the “best evidence” of what occurred. It was not a question of Mr Franklin having an imperfect memory. Secondly, the document was, at best, hearsay. Mr Franklin could not have been the author of the document as he gave a verbal report to a security person and could not have been said to have prepared the document. Given the evidence, I could not be satisfied it was even an account given by Mr Franklin, whether verbal or otherwise.
21 I permitted evidence by way of voire dire in order to determine whether it could be established that Mr Franklin was the author of the document. In that course, Mr Franklin said:[6]
[6] Transcript 96 and following
“Q:
Mr Franklin, you remember in evidence you said you made a report to Joe, the security man, when you got back from the hospital?---
A: Yes. Q: You said he typed it out onto a computer?--- A: Yes. Q: Are you able to read a printed document or not?--- A: No. Q: I just want to read two sentences to you and ask whether it
refreshes your memory or not? Right?---(Reads the first two sentences of Incident Report).
Q: Firstly, does that help your memory, going back to 2004 or not?--- A: No. . . . Q:
Is that something about which you have no recollection at all, that
is whether he stood on the machine or not?---A: Yes. . . .
I then asked the witness:
Q: The two sentences that were read to you, you are not able to say whether that’s what you said or not because you don’t remember. Is that, as I understand it?--- A: Correct.”
22 Mr Franklin was then cross-examined by Mr Titshall:
“Q: Mr Franklin, there are things that you remember about this
incident aren’t there?---A: Yes. Q: One of the things that you remember is this. That you asked Mark
to move the machine, is that right?---A: Yes. . . . Q:
Do you remember how far from the machine you both were
standing when you made that decision to swap over?---A: About five steps away I suppose. . . . Q:
Then when you decided that, talked about that, he walked towards the machine and you walked the other way to pick up the bleach?- --
A: Yes. . . . Q:
You were walking from the machine when you did that, weren’t
you?---A: Yes. Q: And you remember that?--- A: Yes. Q: You did bend over and pick up the bleach didn’t you?--- A: Yes. Q: Do you remember that?--- A: Yes. Q: It’s when you got up as you stood up from bending over to pick up
the bleach off the ground that you turned?---A: No. Q: You remember that much, you remember you didn’t turn?--- A: I bent down on the side and his foot caught my eye. Q: So you bent over and you remember seeing his foot catch your
eye?---A: Yes. Q: And that was the foot that you described – I will just go to your
actual evidence today so you get it?---A: It was his right foot. Q: And you remember that?--- A: Yes. . . . Q:
But what you didn’t see was what he did exactly to be in a position
where his leg was flying out?---A: Yes. Basically I didn’t see the take off. I only saw the landing. . . . Q:
So you didn’t see him actually getting onto the machine?---
A: No, I can’t say that. Q:
And in fact, as you said to us yesterday, you couldn’t say if he got onto the machine – the words were ‘I couldn’t really tell you if he got into the machine or not’?---
A: Yes. Q:
The reason for that is, as I understand it, and you correct me if I am wrong, you have turned away to pick up the bleach. Mark was walking towards the machine, the last you saw of him?---
A: Yes. Q: The next you see of him is his right leg is horizontal out the corner
of your eye?---A: Yes. Q: So in the time you took the few steps and picked up the bleach
you don’t know exactly what he did?---A: Yes. Q: You know he was walking to the machine but you don’t know what
he did?---A: Yes. Q: You know he was walking to the machine with the intention of
getting into the machine?---A: Yes. Q: But you didn’t see him get on the machine?--- A: No.”
23 In re-examination, Mr Jewell asked the following:
“Q: You said to Mr Titshall that you didn’t see the take off?--- A: No. Q: You know you didn’t see it or it’s something you can’t recall?--- A: Something I can’t recall. I don’t really know to tell you the truth. Q: You don’t know?--- A: No.”
24 The first matter is the extent to which the memory of the witness, Mr Franklin, of events of August 2004, is impaired. There is no doubt that any witness to events now five years past would have difficulty recalling precisely what occurred. I would accept that there were aspects of the incident witnessed by Mr Franklin which are now blurry to him. However, I am satisfied that Mr Franklin does have a reasonable recollection of many aspects of the incident. For example, he can recall that he was walking away from the machine to an area where some bleach was located, while he recalls the plaintiff was walking to the machine. He can recall, as he looked up from picking up the bleach, seeing the plaintiff’s right leg come ‘flying out’. He can then recall the plaintiff’s face and upper chest striking the machine.
25 An issue of significance is whether the witness recalled seeing the plaintiff place his right foot on the machine and then seeing that foot slip on a metal cover. It is relatively clear, both in evidence in the trial, and in the course of the voire dire, that the witness had a sufficient recollection of the sequence of events, and the manner in which they occurred, that he was unable to see whether and if the plaintiff ascended onto the machine. Although, in re- examination by Mr Jewell[7] he said that he was unable to recall whether or not he saw the plaintiff’s take off, the balance of his evidence was sufficiently precise, in my view, indicate that the real position was that he did not see the plaintiff ‘take off’, rather than not being able to recall it.
[7] Transcript 101
26 Regardless of whether the witness needs the aid of a document to refresh his memory, there are various criteria which must be fulfilled before a court will grant leave.[8] A principal criterion is that the document must have been made, or read over and accepted as accurate, by the witness while the facts were still fresh in the witness’s memory.
[8] ‘Cross on Evidence’ – paragraph 17.180
27 In the course of the voire dire, Mr Franklin was unable to say whether the first two sentences read to him from the Incident Report Form were actually made by him.[9] It is further clear that Mr Franklin could not have been the person who actually prepared the document. At best, the document, even accepting it was the report referred to in Mr Franklin’s evidence as being recorded by a security officer, Joe, was prepared by that security officer, and not Mr Franklin.[10] To that extent, the document is, at best, an hearsay account of what occurred.
[9] Transcript 97
[10] See Jones v Metcalfe [1967] 3 All ER 205
28 The fact that the Incident Report Form was produced by the defendant when called upon, does not avoid the proposition that its authorship is uncertain. In fact, Mr Titshall produced two documents, uncertain as to which was the one referred to as having been the report of Mr Franklin.
29 In summary, the plaintiff was not able to identify the Incident Report as having been a document made by him or accepted by him as accurate. Given the conflict on the face of it with his evidence, the link between the document and Mr Franklin as its author, is even less tenable.
30 In these circumstances, I rule the document, at least at this stage, as inadmissible. I further rule the first several sentences of the document cannot be read to the jury as evidence of what occurred.
31 I am not at this stage called upon to determine whether the document can be tendered into evidence by some other means in the course of the trial. That will depend upon evidence yet to be called. The document may be admissible pursuant to s.55(1) of the Evidence Act, as a business record, or pursuant to s.55B as a computer record of the defendant.
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