Wormleaton v Thomas and Coffey Ltd (No 3)

[2013] NSWSC 1817

Supreme Court

New South Wales

Case Title:	Wormleaton v Thomas & Coffey Ltd & Ors (No 3)
Medium Neutral Citation:	[2013] NSWSC 1817
Hearing Date(s):	5 December 2013
Decision Date:	05 December 2013
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Admit the document as exhibit 1D23
Catchwords:	EVIDENCE - admissibility of Police Event Record document - whether document is a business record
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	David Wormleaton (plaintiff) Thomas & Coffey Limited (first defendant) Transfield Services Engineering Group Pty Limited (second defendant) Bluescope Steel (AIS) Pty Ltd (third defendant) Workers Compensation Nominal Insurer (fourth defendant)
Representation
- Counsel:	Counsel: M Cranitch SC with M Perry (plaintiff) G Parker SC (first and second defendants) No appearance (third defendant) L Morgan (fourth defendant)
- Solicitors:	Solicitors: Taylor & Scott Lawyers (plaintiff) Curwoods Lawyers (first and second defendants) No appearance (third defendant) Moray & Agnew (fourth defendant)
File Number(s):	10/283242

EX TEMPORE JUDGMENT

1. Mr Parker of senior counsel, on behalf of the first and second defendant, has tendered a Police Event Record relating to an incident which occurred on 2nd July 2006 when Mrs Wormleaton drove her husband to St Marys police station because he seemed to be suffering some kind of paranoid or psychotic attack.

2. The background to this is that I have heard evidence that Mr and Mrs Wormleaton and their daughter were subject to a home invasion in January 2004, during which all were severely assaulted and Mr Wormleaton suffered physical injuries and a resulting post-traumatic stress disorder.

3. The defendant tenders the document as relevant to, specifically in this instance, the existence of a pre-existing psychiatric condition, which, at least from time to time when viewed in conjunction with other evidence which has been admitted without objection, gave rise to severe symptoms necessitating Mr Wormleaton to be hospitalised at least for a short period of time.

4. Mr Wormleaton was cross-examined about this occurrence by Mr Parker when he gave evidence and I think it is fair to say that he admitted the substance of what was put to him by Mr Parker during that passage of the cross-examination.

5. It seems to me that the existence of that pre-existing condition may be relevant to the question of the assessment of economic loss in the present case. I note that in the discharge summary of St George Hospital, which was tendered before me earlier today, it was recorded, as a matter of relevant past medical history, that Mr Wormleaton suffered from the post-traumatic stress disorder. I also received evidence in report form from a psychiatrist, Dr Neil Schultz, also addressing the same matter and making the relevant diagnosis. It seems to me that the now tendered document is relevant in the sense of it being capable of being probative directly or indirectly of a fact in issue in the present case going to the assessment of damages.

6. Mr Cranitch of senior counsel, who appears for the plaintiff, also objects on the basis of the exclusionary hearsay rule. Mr Parker says that the document is a business record. I think in this case the document is covered by the section 69 Evidence Act 1995 (NSW) exception to the hearsay rule. I am satisfied in this instance that the representations contained in the Event Report satisfy the conditions of admissibility established by section 69.

7. Mostly, the document records Mrs Wormleaton's account of the plaintiff's behaviour, not only on the day but also in her experience on occasions since the home invasion. It seems to me that this is a document to which section 69(1) applies because it forms part of the records belonging to or kept by the New South Wales Police Service for the purpose of its business. For the purpose of the Act, a business can extend to the activities of the Crown, and it contains a previous representation made or recorded in the document in the course of, or for the purpose of the business. The previous representations recorded in the document are the representations made by Mrs Wormleaton.

8. By s 69(2), the hearsay rule does not apply to a document so far as it contains the representation, if the representation was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. Now, to the extent to which it contains representations by Mrs Wormleaton, she can certainly be supposed to have personal knowledge of the facts she asserts and, to the extent to which it records matters perceived and observed by the police officers, they too can be taken to have had personal knowledge of those asserted facts.

9. There is no evidence that the exception created by subsection (3), or, perhaps a better way of putting it, the proviso created by subsection (3), has any application in this case, inasmuch as none of the representations were made in connection with an investigation relating to or leading to a criminal proceeding. What is evident from the face of this document is that Mrs Wormleaton, very sensibly I might add, was seeking the assistance of the police to deal with her husband who was behaving, it seems to me, on the basis of what is recorded, in a very irrational way and that the police involvement did not relate to their powers under law enforcement legislation but, rather, as I understand it, mental health legislation. To that extent, I find that the representations were not made in connection with an investigation relating to a criminal proceeding, and I admit the document as exhibit 1D23.

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