Lithgow City Council v Jackson [2011] HCA 36
Background
On 18 July 2002, Mr Jackson was found by bystanders with a decreased level of consciousness and badly injured in a concrete drain in an area of parkland controlled by the Lithgow City Council ('Council'). The western end of the drain had, at its highest point, a 1.41m vertical face topped by a small retaining wall partially concealed by foliage. The northern and southern sides of the wall were not vertical but sloped down.
Mr Jackson brought proceedings in negligence against the Council, arguing that his injuries were caused by a fall by tripping from the small retaining wall and not from the sides. Mr Jackson's brain injuries had resulted in severe amnesia and prevented him from recalling how he came to be injured. Absent of any other evidence, he sought to rely on a short statement contained in a record made by the ambulance officer who attended on him at the time of the alleged incident, which was: '? Fall from 1.5 metres onto concrete'.
Trial decision
The trial judge at first instance found that whilst the Council owed Mr Jackson a duty of care, Mr Jackson had failed to establish that his injuries were caused by the Council's breach of duty as he could not prove that he had fallen over the western vertical face after walking over it, as distinct from stumbling down one of the sloping sides, or standing on the top of the northern face and losing his balance. Her Honour did not refer to the statement in the ambulance record in her reasons.
Court of Appeal decisions
The decision was appealed to the New South Wales Court of Appeal. The appeal books before the Court of Appeal truncated the question mark in the statement, and the Court of Appeal considered the truncated statement to be an opinion admissible under s78 of the Evidence Act 1995 (NSW) ('Act').
This established, together with circumstantial evidence as to Mr Jackson's positioning at the base of the wall and the nature and severity of his injuries, that he had fallen down the vertical western face of the drain. The ambulance record was considered crucial to their Honours' conclusion that Mr Jackson had established causation.
The Council sought special leave to appeal to the High Court of Australia on the basis that the Court of Appeal had been misled about the existence of the question mark because the question mark was not visible in the appeal books. Upon granting special leave for the remittance of the matter for a rehearing, the Court of Appeal again found that the record was admissible and that Mr Jackson had proved causation. Basten JA went further to find that in the absence of the record, the surrounding evidence proved causation.
The Council again sought to appeal the second of the two decisions of the Court of Appeal.
High Court of Australia decision
Two issues were before the High Court of Australia. The first was whether the Court of Appeal in its second decision was correct to hold that the ambulance record was admissible. The second was whether, even if the record was not admissible, the conclusion that causation was established could be supported by other evidence.
The majority (French CJ, Heydon and Bell JJ) looked at the ambulance record as hearsay evidence and therefore not admissible, but in turn considered the application of s69 of the Act which provides an exception to the hearsay rule where the hearsay is contained in a business record. However considering the interplay of s69 with other exclusionary rules in ss76 to 79, it was found that even if the ambulance record met the exception in s69, it did not mean that it was admissible for a non-testimonial purpose.
The majority then considered whether the ambulance record was opinion evidence, and therefore subject to the exclusion that opinion evidence is not admissible to prove a fact contained in s76 of the Act. Also, whether Mr Jackson could establish that the ambulance record, if it ultimately was an opinion (which it was held not to be), met the two limbs of the exception to the opinion rule in s78 of the Act.
Section 78 relevantly provides that (underlining added):
- the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
- evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
The majority found that Mr Jackson, who had the onus of proving both limbs, had failed to do so where:
- The matter or event that was required to be perceived was Mr Jackson's fall
- The ambulance officers (who Mr Jackson did not call to give evidence) did not see, hear or perceive the fall, only the aftermath what was assumed to be a fall
- The function of s78(b) is to make up for incapacity to perceive the primary aspect of an event. The ambulance officers were not shown to be suffering from incapacity in perception, memory or expression. Had the ambulance officers been called to give direct witness evidence of the medical and physical details of what they observed then this evidence would have been admissible.
The High Court of Australia held unanimously that the Court of Appeal erred in finding the ambulance record as an admissible opinion under s78 of the Act. The record was so ambiguous as to be irrelevant and of little probative value.
Moreover, the Court held by majority that in the absence of the record, the other evidence, being the positioning of Mr Jackson's body and bodily fluids after the incident relative to the drain and the nature / severity of his injuries, did not establish causation. The inference that a fall from the vertical western face of the drain caused his injuries could not be drawn on the balance of probabilities, particularly where no medical evidence was produced to draw this factual inference (in dissent, Crennan J).
Comment
This decision highlights to litigators the importance of proper investigations, obtaining expert evidence and proofing witnesses at an early stage. This decision may have been different had Mr Jackson obtained evidence from a medical expert on the nature and extent of the injuries being consistent with a fall from a certain height and had called the ambulance officers to provide direct evidence of their observations at the time of the incident and further explanation of the content of their record.
In the practicalities of litigation, the first consideration should be, based on the pleadings, what facts need to be established and what evidence can be called to support those facts.
The onus remains on the party tendering the evidence to establish its admissibility in order to prove their case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
