Potter v Yeung (Ruling No 1)
[2018] VCC 1640
•11 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-00035
| ELIZABETH ANNE POTTER | Plaintiff |
| v | |
| WILLIAM YEUNG | First Defendant |
| and | |
| SANTOSA REALTY CO PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 and 11 October 2018 | |
DATE OF RULING: | 11 October 2018 | |
CASE MAY BE CITED AS: | Potter v Yeung & Anor (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1640 | |
RULING
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Subject: ADMISSIBILITY OF EVIDENCE
Catchwords: Admissibility before a jury of affidavit of solicitor for the plaintiff as to instructions provided about complaints of a co-tenant allegedly made to real estate agent before a fall – hearsay evidence – whether probative value substantially outweighed by unfair prejudice (s135 Evidence Act 2008) – whether limitation upon use of the evidence (s136 Evidence Act 2008) – whether jury should be warned evidence may be unreliable (s165 Evidence Act 2008) – relevance of evidence
Legislation Cited: Evidence Act 2008, s59, s63, s135, s136, s165
Ruling: Application to admit affidavit of solicitor refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr J Valiotis | Arnold, Thomas & Becker |
| For the First Defendant | Mr A W Middleton | Mills Oakley |
| For the Second Defendant | Mr C G K Madder | Moray & Agnew |
HIS HONOUR:
1 This is a jury trial in which the plaintiff, Ms Potter, seeks pain and suffering damages for injuries she alleges she suffered when she slipped and fell on the rear steps of premises she was leasing at 73 Kanooka Road, Boronia (“the property”), on 19 May 2014.
2 Ms Potter sues the first defendant, Mr Yeung, who was the owner of the premises, and the second defendant, Santosa Realty Co Pty Ltd, the real estate agency who managed the premises on behalf of Mr Yeung.
3 In the course of her evidence before the jury, Ms Potter said that at about 9.00pm on 19 May 2014, it was drizzling with rain, and she walked down the rear steps of the property to go outside. As she returned, walking up the steps, she slipped on the second or third step and fell, fracturing part of her foot.
4 Her cause of action against the first defendant is in negligence, breach of the occupier’s duty pursuant to s14B of the Wrongs Act 1958, breach of s68 of the Residential Tenancies Act 1997, founding a claim in civil damages, and a contractual breach of a residential tenancy agreement.
5 The claim against the second defendant is in negligence. The second defendant has admitted it owed a duty of care, but denied breach. Each defendant, in addition, alleges the plaintiff was contributorily negligent.
6 The solicitor for the plaintiff, Ms Allanah Goodwin, swore an affidavit on 8 October 2018. Relevantly, she deposes:
“I met with Richard Eden at a conference on 15 March 2016. At that conference Richard Eden advised that he complained to the real estate agent managing the rental property that there was a leak from the back porch corrugated fiberglass roofing causing water to fall onto the patio wood near the rear stairs. Richard Eden made this complaint to the real estate agent on a date that was prior to the plaintiff's fall on 19 May 2014.”[1]
[1]Plaintiff’s Court Book 163
7 Mr Eden was Ms Potter’s co-tenant at the property over the relevant period. They entered a residential tenancy of the property in about September 2013. Mr Eden died after providing these instructions to Ms Goodwin.
8 Mr Ingram, for the plaintiff, seeks to tender the affidavit into evidence and place it before the jury, subject to the right of the defendants to cross-examine Ms Goodwin. Counsel for each defendant objects to the tender. They say the prejudice to their clients is too great. They say, further, that even if the affidavit is admitted to evidence, each counsel submits I ought instruct the jury that the evidence is hearsay, and therefore unreliable, and further, that it is not relevant to the issues in the proceeding.
9 Section 59 of the Evidence Act 2008 excludes hearsay evidence in a proceeding. The paragraph of Ms Goodwin’s affidavit is clearly hearsay. Section 63 of the Evidence Act provides that the hearsay rule does not apply to evidence of a representation given by a person in a civil proceeding if that person is not available to give evidence about an asserted fact. I am satisfied that Mr Eden’s statement to the solicitor about a complaint to the real estate agent in relation to the leaking roof is an “asserted fact”. Prima facie, the affidavit is admissible as an exception to the hearsay rule, in particular under the provisions of s63.
10 Once admitted, regardless of the representation being hearsay, it is admissible to prove the truth of the fact asserted, that is, that Mr Eden complained to the real estate agent about water falling from the roof.
11 Section 135 of the Evidence Act provides a general discretion to exclude evidence in circumstances where the probative value of that evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendants, or misleading or confusing.
12 Section 136 of the Evidence Act provides, further, that the Court may limit the use to be made of the evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party.
13 Section 165 of the Evidence Act provides that a judge, if requested, is required to warn a jury that evidence, including hearsay evidence, may be unreliable, and to inform the jury as to the matters that may cause it to be unreliable, and, further, to warn the jury of the need for caution in determining whether to accept the evidence. The judge need not give such a warning if there are good reasons for not doing so.
14 It is clear from the pleadings, and the evidence of Ms Potter thus far, that there are a number of aspects in relation to the premises which she says caused or contributed to her fall. Firstly, a light near the stairs had not been working since the commencement of the lease and the area was dark on the night in question; secondly, the stairs were dilapidated and slippery, particularly in the drizzling rain falling at the time, and had a build-up of moss; thirdly, there was no handrail which would have assisted and supported her ascent of the stairs. The relevant paragraph of the solicitor’s affidavit deposes the complaint by Mr Eden to the real estate agency was that there was a leak from the roof of the back porch causing water to fall onto the patio wood near the rear stairs. The complaint was said to have been made prior to Ms Potter’s fall. It is far from clear that the leakage from the roof onto the back porch contributed to the stairs becoming slippery. In fact, there is no reference to the water flowing from the roof onto the stairs, rather, it fell onto the “patio wood near the rear stairs”.
15 There is clear prejudice to the defendants in the admission of the affidavit into evidence. Evidence of a prior complaint in relation to premises where an accident occurred may be significant. The defendants are unable to cross-examine Mr Eden on a range of issues relating to the alleged complaint, including as to when he made it, to whom he made it, the circumstances which brought it about, and, most importantly, even if he did make a complaint, whether what he was complaining about was relevant to the issues raised by Ms Potter which she says contributed to her fall.
16 However, s135 of the Evidence Act makes it clear that the probative value must be “substantially outweighed” by the danger of unfair prejudice before hearsay evidence should be excluded. It is clear there is a heavy onus on a party seeking to exclude evidence under this section, and that exclusion will only be granted in a “clear case”. The balancing process referred to in s135 is clearly weighted in favour of the admissibility of the evidence.
17 In a common law jury trial, a court should consider the extent to which the dangers associated with admitting the evidence can be reduced by a clear direction to the jury.
18 The term “probative value” is defined in the dictionary of the Evidence Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
19 The failure to be able to cross-examine a witness may not, of itself, lead to unfair prejudice such as to exclude evidence. Each case must be assessed on its own facts. Further, if admitted, a judge may instruct a jury in accordance with the provisions of s165, that the evidence may be unreliable, and as to the reasons why it may be unreliable.
20 If the jury were to be informed that a prior complaint had been made of water running from the roof onto the back patio, then that evidence could be a significant point in the plaintiff’s favour. The jury may take the view that a complaint had been made, and nothing was done about it by the real estate agent.
21 Were the issue solely one of a complaint being made about the premises and the prejudice to the defendants being not being able to cross-examine Mr Eden, then I would be inclined to admit the affidavit into evidence. However, the matter does not end there. The relevant paragraph from the affidavit does not make reference to any of the issues raised by Ms Potter which she says contributed to her fall. There is no reference to the stairs being slippery. There is no reference to the lack of a handrail. There is no reference to poor lighting in the area. At best, the jury would be asked to infer that the complaint that was made by him to the real estate agent of water falling on the patio near the stairs, caused the stairs somehow to become slippery. There would be a distinct risk, in my view, that the jury would come to the conclusion, even with a clear direction, that the fall of water from the roof was related to the slipperiness which caused or contributed to Ms Potter’s fall. Without the ability to cross-examine Mr Eden on the point, there is a very significant prejudice to the defendants. The complaint by Mr Eden may have nothing to do with the allegations Ms Potter makes and there is the risk that the fact that a “complaint” had been made ought to have led to the agents taking some steps.
22 The only other matter which could be said to be relevant is that if a complaint was made in relation to water from the roof and the real estate agent, or someone on its behalf, attended in response, then the agent ought to have been alerted to the state of the stairs, the lighting, or the handrail. That is too long a bow to draw in the circumstances of this trial to give rise to an inference the agent ought to have acted in relation to the lighting, handrail, or surface of the stairs.
23 In my view, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendants. That cannot be properly corrected by a direction to the jury, whether as to reliability of the evidence or otherwise.
24 The application to admit the affidavit into evidence is refused.
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