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Council Watches Causation Case Go Down Drain in NSW Court of Appeal By Roger Walter | December 2008 Area of Expertise | General Insurance

Summary The Court of Appeal’s recent decision in Jackson v Lithgow City Council combines the use of inference and what was almost lay opinion evidence in a good illustration of how causation in negligence may be proved on the balance of probabilities with only minimal circumstantial evidence and in the context of competing plausible scenarios.

Who Does This Impact? Liability insurers and others involved in common law litigation.

What Action Should Be Taken? Care should be taken to carefully scrutinise the evidence and the associated arguments about its admissibility and probative value before proceeding with any appeal.

Introduction In its 24 November 2008 decision in Jackson v Lithgow City Council1 the NSW Court of Appeal explored the intersection of some lesser known boundaries of two areas of the law we often navigate across while conducting litigation: the admissibility of opinion evidence and the proof of causation in negligence. The court then settled on the opinion of an ambulance officer, who had not given evidence, as the basis upon which to find for the plaintiff and overrule the carefully reasoned decision of the trial judge, who had entered a verdict for the defendant. The Court of Appeal’s decision combines the use of inference and what was almost lay opinion evidence in a good illustration of how causation in negligence may be proved on the balance of probabilities with only minimal circumstantial evidence and in the context of competing plausible scenarios - with the defendant contending that a court could not be satisfied as to how the plaintiff came to be injured.

The Facts & Findings at Trial At 6.57 am on 18 July 2002 the plaintiff was found lying unconscious in a concrete drain in a park at Lithgow, NSW. He had his dog leads with him and was found to have suffered a significant head injury as well as other injuries, including a fractured wrist. He had no recollection of events and could not even recall going to the park. The record created by the ambulance officers who collected the plaintiff from the scene was admitted into evidence as a business record. In it one of the officers wrote the following comments: Found by bystanders - parkland Fall from 1.5 metres onto concrete The plaintiff sued the Council in negligence, alleging that he had fallen over the low, unfenced retaining wall of the drain.

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Council Watches Causation Case Go Down Drain in NSW Court of Appeal by Roger Walter

The plaintiff had not been to the park before and he was able to lead evidence from his former girlfriend about the circumstances in which he had left home on the night in question. She and others had been out drinking that evening with the plaintiff who drank some more upon returning home with her. She went to bed before him and said that at 3.30 am, when he was still playing music, she told him to either be quiet or take the dogs for a walk. At 4.00 am she checked to see what the plaintiff was up to and found that he had left the house with the dogs. The low retaining wall bordering the western wall of the drain blocked the view of the drain if you walked down the slope of the park approaching the drain from the west. Bushes also obscured the retaining wall itself, which was within the contour of the slope leading down to it. The trial judge found that a sober person approaching from the west at night and taking reasonable care would not have seen the wall or the 1.5m shear drop to the concrete drain below. This was a sufficient basis for a finding of breach of duty of care. However, there was no direct evidence that the plaintiff approached the drain from the west or that he did so at night. On its northern and southern sides the drain had sloping sides rather than a shear drop. It was suggested that the plaintiff might have stumbled during daylight or that his approach to the drain was from the side from either the northern or southern approach. The ambulance officer’s note appears to have been treated with a good deal of caution at trial in that it might simply have been hearsay in the form of a record of what was said by the bystanders who had found the plaintiff (in the context of there having been no witnesses to the accident itself ). Neither party called the ambulance officer to give evidence to clarify this. In light of this and the various possible scenarios, the trial judge was not satisfied that the plaintiff had proved causation, i.e. that the plaintiff suffered his injuries as a result of the breach of duty of care. The intoxication provisions of s50 of the Civil Liability Act 2002 were of course raised by the defendant and the trial judge found in this regard that the fall, if it did occur as alleged, would have happened even if the plaintiff was sober and that the statutory contributory negligence deduction of 25% would be appropriate if she was wrong in ruling against the plaintiff on causation.

The Problem of Proof The President of the NSW Court of Appeal, his Honour Justice Allsop, wrote the judgment of the Court of Appeal. He observed that the trial judge did not draw any conclusion from the note of the ambulance officer as to a ‘fall from 1.5 metres onto concrete’. In relation to the trial his Honour also observed: A significant difficulty confronted by her Honour was that there was no direct evidence as to the position of the appellant’s body in the drain when he was found. The photographs taken by the police were taken after the appellant was taken from the scene. The evidence disclosed that blood and urine was at a position on the drain 2.69 metres from the base of the wall and roughly in the middle of the U shaped drain. The respondent below and on appeal said that it was entirely speculative to draw any conclusion as to whether the appellant had tripped over the wall and fallen down the 1.5 metres (as the appellant alleged in his case), fallen off the wall while standing on the wall, fallen into the drain from the side having tripped or stumbled, or had been assaulted. The respondent also submitted below and on appeal that it was speculation as to whether the accident occurred before or after daylight.

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Council Watches Causation Case Go Down Drain in NSW Court of Appeal by Roger Walter

Allsop P held that the exception to the opinion rule2 given in s78 of the Evidence Act 1995 (NSW)3 entitled the court to take the ambulance officer’s note that there had been a fall to be the conclusion drawn by the ambulance officers as to what had happened, they having the inert unconscious body in front of them and they having the advantage of being able to assess the position of the body and its relationship with the wall and the drain.

The Critical Inference The finding of fact of a fall into the drain from its shear western side from a height of 1.5 metres into the drain could not by itself result in a finding that the plaintiff’s injuries had been caused by the Council’s breach of duty in not fencing off the western side of the drain. The defendant pointed to the lack of evidence as to whether the fall occurred before or after dawn and suggested competing scenarios such as that the plaintiff fell after standing on the edge of the drain. The defendant was also suggesting that there may have been an assault (although the Police had found no evidence of this). In the absence of direct evidence it was a matter for inference as to whether the plaintiff walked down the slope of the hill towards the drain and was taken by surprise by the drain while it was still dark. The difficulty was that this was just one of a number of competing, plausible scenarios. Before proceeding to resolve the matter, Allsop P set out the law applicable to the task of determining proof of causation by quoting the following passages from two 1950s High Court cases: … you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture … . All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than on the balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.4 … But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.5

By reference to the relative locations of the park and the house from which the plaintiff had walked, the evidence as to the time when he left the house and the unlikely scenario that he had been out walking for hours before he fell, Allsop P concluded that the plaintiff was injured in the manner he had alleged. His Honour concluded as follows: The inference that the appellant fell over the wall while walking down the hill rather than stumbling from the side is assisted because of the ambulance officers’ conclusion and the greater visibility of the drain from the side. Further, the scale of the appellant’s injuries appears more consistent with a significant fall of 1.5 metres than stumbling into the shallow drain from the side.

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Council Watches Causation Case Go Down Drain in NSW Court of Appeal by Roger Walter

The inference that I would make is also more likely to have been the cause than falling off the wall having been standing on it. Such a fall would be less likely to lead to the position of the blood and urine 2.6 metres from the base of the wall and would, in ordinary human experience, be unlikely to have led to the significant injuries that would occur from a sudden fall from that height after tripping or stumbling while in motion. As to the possibility of the appellant having been assaulted, the police having investigated the matter do not appear to have formed any such view. The ambulance officers do not appear to have formed any such view. While it is a possibility, on all the evidence, including the opinion of the ambulance officers at the time, I am prepared to infer that the accident occurred in the manner asserted by the appellant. For the avoidance of doubt, and in deference to the primary judge, if it is not legitimate to use the ambulance officers’ record in the way that I have, I would agree with the primary judge that on the material available it was not possible to infer that the accident happened in the way asserted by the appellant. All the other material, while consistent with that being the case, does not permit, in my view, any inference that it occurred in that fashion. Critical is understanding the place of the body, its configuration and its relationship to the surrounding structures. The ambulance officers had that advantage. I read their note as recording their view. That evidence, together with the balance of the consistent material is sufficient in my view to allow the drawing of the inference in question.

Implications At a factual level this case serves as a stark reminder of the critical role often played by the evidence that is virtually contemporaneous with the occasioning of the harm, or which, at least, has all of the fundamental facets of the scene of the harm in its pedigree. In this case both parties qualified experts who provided opinions about the dynamics of the accident scene and the relative likelihood of the scenarios proposed in respect of it. This evidence was ultimately found not to be of assistance, essentially because of the degree of speculation involved in its formulation. The case also serves as a reminder about the power of inference and the role of s78 of the Evidence Act 1995 in the admissibility of what many might consider to be inadmissible opinion evidence. The case is also a relatively uncommon and enlightening illustration of the operation of the proof of causation principles enunciated in the High Court 50 years ago. Causation is far more difficult than the notion of commonsense expounded in different circumstances in the High Court’s 1991 decision in March v E & MH Stramare Pty Ltd6. Many defendants would have been content to cling to and run with the case on causation and then refuse to negotiate with the plaintiff pending the hearing of the appeal, which by the way, resulted in the doubling of the award for economic loss from $50,000 to $100,000. However, perhaps if the valuable points outlined above had been given a greater degree of attention, it may have been possible to avoid what was ultimately a disappointing outcome for the Council, not to mention a considerable costs liability.

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Council Watches Causation Case Go Down Drain in NSW Court of Appeal by Roger Walter

Endnotes 1

Jackson v Lithgow City Council [2008] NSWCA 312 (unreported decision of 24 November 2008)

2

The opinion rule is found in the Evidence Act 1995 (NSW) at s76(1) and is that evidence of an opinion is not admissible to prove the existence of a

fact about the existence of which the opinion was expressed.There are several exceptions to the opinion rule. 3

One of the exceptions to the opinion rule is given in s78 of the Evidence Act 1995 (NSW): The opinion rule does not apply to evidence of an opinion

expressed by a person if:(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event. 4

Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480-481, being a passage which itself quotes from the joint judgment of Dixon J (as he then

was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Limited (unreported, High Court of Australia, 27 April 1951). 5

Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305.

6

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

For more information, please contact:

Roger Walter Partner T: 02 8257 5736 roger.walter@turkslegal.com.au

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Council Watches Causation Case Go Down Drain in NSW Court of Appeal