Alam v Rail Corporation New South Wales

CITATION: Alam v Rail Corporation New South Wales [2008] NSWDC 265 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Allen v Tobias (1958) 98 CLR 367 Angel v Hawkesbury City Council [2008] NSWCA 130 Balasubramanian v Sara [1997] NSWCA 39 Beaton v McDivitt (1985) 13 NSWLR 134 BHP Pty Co Ltd v Mason and Anor (Supreme Court of South Australia, Debelle J, 7 November 1996, unreported) Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956; [2008] NSWCA 144 Boyes v Collins (2000) 23 WAR 123; [2000] WASCA 344 Bridges v Pelley [2001] NSWCA 31 C Van der Lely NV v Bamfords Ltd [1963] RPC 61 Clark v New South Wales [2006] NSWSC 673 Dem Compagnie Pty Ltd v Telxon Australia [2004] NSWCA 66 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 Harrison v Melhem [2008] NSWCA 67 Hayes v Marquis [2008] NSWCA 10 Jones v Dunkel (1959) 101 CLR 298 Joslyn v Berryman (2003) 214 CLR 552 CASES CITED: Mackenzie v Nominal Defendant [2005] NSWCA 180 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Morgan v Johnson (1998) 44 NSWLR 578 NSW Department of Housing v Hume [2007] NSWCA 69 People v Bowley 59 Cal 2d 855; 382 P 2d 591 (CA, 1963) Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692; [2008] NSWCA 204 R v Ames [1964-5] NSWR 1489 R v Lobendahn (1980) 5 Petty Sessions Review 2484 R v Travers (1958) 58 SR (NSW) 85 Schmidt v Schmidt [1969] QWN 3 Short v Barrett [1990] NSWCA 164 State v Pulphus 465 A 2d 153 (RI, 1983) Stillwell Trucks Pty Ltd v McKay & Ors [2002] NSWCA 292 Talbot-Butt v Holloway (1990) 12 MVR 70 Transfield Services (Australia) v Hall [2008] NSWCA 294 United States Shipping Board v The Ship St Albans [1931] AC 632 White v White [2004] NSWSC 208

4. The plaintiff is a 58 year old woman who was born in Lebanon. She has lived in Australia since 1974. She is divorced and lives with her 26 year old son, who suffers from Tourette's syndrome. The plaintiff is on a disability pension, which she said in her evidence was because she has bilateral carpal tunnel, a condition unrelated to the accident. The plaintiff is able to speak English but clearly had difficulties with the unfamiliarity of the courtroom setting, and gave her evidence through an Arabic interpreter. She was at times nervous and some of her evidence was, to use Mr Reoch's description in his submissions, dramatic, but I have taken into account the warnings of the Court of Appeal in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 concerning the dangers of misreading cultural factors into demeanour findings.

34. The two decisions relied upon by the defendant were Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956; [2008] NSWCA 144 and Angel v Hawkesbury City Council [2008] NSWCA 130.

… it seems to me that the law is a little unclear as to just what use may be made of photographs tendered at a trial. In a criminal trial, photographs of the victim may be tendered to enable the jury to understand the medical evidence: see, eg, R v Lobendahn (1980) 5 Petty Sessions Review 2484. Even if photographs are tendered in a motor car accident case, it may be that without concession the photographs can only be used by the judge as descriptive of what the witness who tendered them saw, and that the judge cannot himself make deductions from them: see, eg, Schmidt v Schmidt [1969] QWN 3. However, in R v Ames [1964-5] NSWR 1489 at 1491, the Court of Criminal Appeal seems to me to have made a greater use of the photograph than merely to use it to understand the evidence because their Honours said: … the photographs … did have some probative value, as distinct from an oral description of what they depicted … They depict the direction of the flow of blood on to the clothing and establish the presence of blood on the mouth …

[13] It appears that Schmidt , which relied on the older version of Wigmore's text, may need reconsideration, as suggested by Young J in Beaton. " 36. Tobias JA at [167] - [172] added: " [167] The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: R v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett , Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the "sage advice" of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said:

[168] In Stillwell Trucks Pty Ltd v McKay & Ors [2002] NSWCA 292, Campbell AJA, with the agreement of Handley and Beazley JJA, also referred (at [71]-[72]) with approval to this passage from Lord Reid's speech, observing that although his Lordship was concerned with a patent case concerning a hay rake and the issue was anticipation, the passage gave guidance on a wider basis. Campbell AJA then observed (at [73]):

[170] Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of "careful delineation" particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.

[71] In Short v Barrett [1990] NSWCA 164; unreported (BC9003193), Meagher JA, with the concurrence of Clarke and Handley JJA, considered that judges should not, when looking at photographs, overlook what his Honour referred to as the sage advice of Lord Reid in C Van der Lely NV v Bamfords Ltd (1963) RPC 61 at 71, namely:

41. In my opinion, the defendant is making too much of what is only a passing reference by Tobias JA to a decision in which videotape evidence was used. Videotape and CCTV evidence occupy a special position because of their ability to capture, in an objective and independent way, evidence in a case. In "Disclosure of Evidentiary Video Tapes in Personal Injury Litigation" (2001) 75(6) ALJ 353, Mr Justice P W Young noted: "It is common in litigation involving personal injury for the defendant to retain a camera person to videotape the plaintiff's daily activities in an endeavour to establish that the plaintiff is exaggerating his or her symptoms."
42. His Honour went on to note that in Boyes v Collins (2000) 23 WAR 123; [2000] WASCA 344 the Full Western Australian Supreme Court had ordered the defendant to produce the tape. Although the tape was protected by legal professional privilege, it was classed as "real evidence", and because the overriding consideration is fairness, the videotape should be discovered so the witness had time to view it before giving evidence.

43. The Court of Appeal has accepted videotape and CCTV evidence in many personal injury proceedings without any suggestion that its accuracy should be viewed with the caution application to photographs. In Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692; [2008] NSWCA 204 the Court of Appeal viewed and commented upon the CCTV of a shooting incident without the benefit of expert (or indeed any) interpretation. In Balasubramanian v Sara [1997] NSWCA 39 Mason P viewed the surveillance video and discussed his observations. CCTV and surveillance videos are routinely tendered in criminal proceedings.

55. The plaintiff's submissions assert (paragraph 1) that boarding and alighting a train are "one of the most dangerous acts that a person does in our society." This is a submission that has been made about other means of ingress and egress, notably stairs (NSW Department of Housing v Hume [2007] NSWCA 69 at [93]). The law on this issue was recently, and exhaustively, analysed by the Court of Appeal in Transfield Services (Australia) v Hall [2008] NSWCA 294 at [58] - [107]. I gratefully borrow the careful analysis of the concept of "inherently dangerous" as set out in these judgments. The fact that mistakes in what the plaintiff calls "the departure process" (which I assume means attempting to board a train which is about to depart) can lead to serious injury or fatality is not sufficient, of itself, to place some non-delegable or higher duty on a defendant in circumstances where a passenger chooses to ignore warning noises and whistles and attempt to board a train which is about to depart.

61. The plaintiff refers to Talbot-Butt v Holloway (1990) 12 MVR 70 as a comparable case on contributory negligence. The facts in that case were very different. The plaintiff, who was found by the court to have deliberately courted danger, ran in front of a car while inebriated. However, as the Court of Appeal explained in Mackenzie v Nominal Defendant [2005] NSWCA 180 at [104] ff, when discussing and distinguishing this case, inebriation may often not be grounds for reducing liability for contributory negligence; it will depend on the facts in the case. In the present case, the plaintiff was sober but extremely foolish, in that she did something at the last minute without warning.

75. The inference for which Jones v Dunkel stands is generally applied to the failure of a party to call a witness. In White v White [2004] NSWSC 208, Macready M (as his Honour then was) considered that a failure to comply with obligations to disclose financial information in de facto property settlement application could be a matter in which it was appropriate to apply Jones v Dunkel to draw inferences against the party who had failed to provide the appropriate information. This decision is referred to in Hayes v Marquis [2008] NSWCA 10 at paragraph 130 but was distinguished on the facts of the case.

78. The principles in Allen v Tobias were considered by the Court of Appeal in Dem Compagnie Pty Ltd v Telxon Australia [2004] NSWCA 66 at paragraphs [24]ff. The circumstances in that case were that the relevant document was not produced and since its non-production was not explained, the inference was that it had been deliberately destroyed (at [25]). Although a witness who could have given evidence about this document was not called, and his absence attracted the principles in Jones v Dunkel (at [25]), in other words, the Court of Appeal differentiated between a witness who was not called and a document, which was not produced.

79. In Clark v New South Wales [2006] NSWSC 673 at [76]ff, Johnson J gives an exhaustive analysis of the circumstances in which unfavourable inferences will be drawn where destruction of potential evidence has occurred or can be inferred. His Honour noted the need for there to be an element of conscious repression or withholding before such an inference could be drawn (Bridges v Pelley [2001] NSWCA 31 at [52]) and that the fabrication "or suppression" of evidence (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [40]) could give rise to the inference not only to any specific fact in the cause but to operate, indefinitely though strongly, against the whole mass of alleged facts constituting the relevant parties' cause of action.

101. On 12 November 2008 the Civil Liability Legislation Amendment Act 2008 (NSW) commenced operation: Government Gazette No. 145, 12 November 2008. This legislation is retrospective in relation to undecided claims (see Schedule 1) and designed to close the loophole exposed in s 15 Civil Liability Act 2002 exposed in Harrison v Melhem [2008] NSWCA 67. Like amendments are made to the Motor Accidents Act 1988 (NSW) and to the Motor Accidents Compensation Act 1999 by Schedule 2 of the Civil Liability Legislation Amendment Act.

(1958) 98 CLR 367

(1985) 13 NSWLR 134

(2000) 23 WAR 123

(1959) 101 CLR 298

(2003) 214 CLR 552

(1998) 44 NSWLR 578

(1990) 12 MVR 70

[1997] NSWCA 39

[2001] NSWSC 510

[2001] NSWCA 31

[2008] NSWCA 10

[2008] NSWCA 294