Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church

Supreme Court of NSW|2016-08-10|Before: Garling J

Judgment

The plaintiff, Carolin Alzawy, has commenced proceedings in this Court claiming damages for personal injuries which she sustained on 3 January 2013, when she fell whilst descending an internal staircase at the premises of the defendant.
The Court is presently hearing two questions separately and in advance of all other issues in the proceedings. These two questions relate to the liability of the defendant for the plaintiff's fall.
It is the plaintiff's case that she fell down the stairs because she stepped on a broken nose tile and lost her balance. The defendant admits that the presence of the broken nose tile constituted a breach of its duty of care, but contends that the plaintiff's fall was not caused by that broken tile because her fall started elsewhere on the staircase. It denies liability for the plaintiff's fall.
As part of her case, the plaintiff seeks to lead hearsay evidence which consists of previous representations made by her in a number of paragraphs of statements made by her on 15 October 2014 and 6 May 2016. The plaintiff, who has a tutor appointed to conduct the litigation, submits that she is entitled to lead the hearsay evidence because, within the meaning of s 63 of the Evidence Act 1995, she "… is not available to give evidence…".
Clause 4 of the Dictionary in the Evidence Act, which is given force by s 3, relevantly provides: "4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: … (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability..."
The defendant objects to the hearsay evidence being led, and submits that the Court should not be satisfied that the plaintiff is unavailable to give evidence.
The Court heard the submissions of the parties on the first day of hearing. At the conclusion of the argument, I declined to allow the hearsay evidence to be led because I was not satisfied that the plaintiff was "unavailable" to give evidence as that term is defined in the Evidence Act. I indicated that I would give reasons in due course.

Report of Dr Guirguis dated 8 August 2016

One of the documents which the plaintiff tendered in support of her application for the admission of hearsay evidence was a report of Dr Guirguis dated 8 August 2016. The defendant objected to its tender.
It is convenient at the outset of this judgment to deal with that tender. In my opinion, the report is not admissible, and I reject its tender.
The report does not meet the minimum criteria for an expert report to be admissible. The necessity for a report to address these requirements is highlighted when there is a real issue in dispute between the parties about the proof of the underlying facts upon which the report was based.
In my opinion, the report is inadmissible because: 1. the report does not reveal the basis for the opinion being expressed. It does not indicate whether Dr Guirguis, who is not the plaintiff's treating general practitioner, had ever seen, let alone examined, the plaintiff; 2. the report does not reveal the source of any of the information contained within it. It certainly does not reveal if the source of the information was the plaintiff herself, or her husband, or other expert reports; 3. the report expresses conclusions without revealing the reasoning which led to those conclusions; and 4. the final expressed conclusion about the plaintiff that "she is not medically fit to attend court, at present, due to her brain function impairment" does not disclose in any detail what the impairment is, whether it is temporary or permanent and how that impairment, and the effects of it, were assessed, or would impact on the plaintiff's ability to give evidence.
Accordingly, the tender of the report, marked MFI 1, is rejected.
It is necessary to consider the remaining evidence in support of the application to adduce the hearsay evidence.

Evidence for the Plaintiff

In addition to the report of Dr Guirguis (which I have rejected), the plaintiff relied upon the evidence of her solicitor, Mr Stephen Sharpe.
In substance, Mr Sharpe, a very experienced litigation solicitor, gave evidence that he had observed the plaintiff at various times since he was first instructed in these proceedings in 2013. Initially, to his observation, the plaintiff was both physically and mentally well, spoke excellent English, was able to give an account of what had occurred, and gave clear instructions.
These observations and conclusions were made by Mr Sharpe on a number of occasions throughout 2013 and the first half of 2014.
However, on 15 October 2014, when Mr Sharpe attended a conference with the plaintiff, he observed that she had deteriorated very badly, both in her physical appearance and in her mental state. This deterioration caused him some alarm. Nevertheless, on that day, whilst she was present in his office for that conference, Mr Sharpe was able to take a relatively short statement from the plaintiff about the circumstances of her accident. Mr Sharpe had misgivings about the plaintiff's mental capacity, but he did not feel it necessary on that day to move immediately to appoint a tutor. A tutor was not appointed for approximately 12 months after that time.
Whilst Mr Sharpe, on 15 October 2014, would have preferred for the plaintiff to have given him more extensive instructions, particularly about the mechanics of how she fell, he did not have any misgivings about the reliability of the contents of the statement insofar as it went.
On that day, having taken and typed her statement, Mr Sharpe read the whole of the statement to the plaintiff, who appeared to him to understand it. He then arranged for the plaintiff to sign it.
Mr Sharpe saw the plaintiff again in conference on 30 April 2016, during which a second statement was taken. This statement was ultimately signed on 5 May 2016. His view was that the plaintiff's condition had improved markedly and that she was mentally more lucid than in October 2014.
On 4 August 2016, Mr Sharpe had a further conference with the plaintiff in preparation for the hearing of these proceedings. In his opinion, the plaintiff's condition had deteriorated since April 2016 to such an extent that it was the same as, or perhaps worse than, her condition on 15 October 2014, when he took the first statement. It was the content of that first statement which Mr Sharpe regarded as reliable.
It was an agreed fact between the parties that the plaintiff was physically present in the precincts of the Court on, and throughout, the first day of the hearing.

Evidence for the Defendant

Initially, the defendant did not lead any evidence. Ultimately, and without objection during the course of the defendant's submissions, the defendant tendered two reports of health professionals who had seen the plaintiff relatively recently. The first of these was the report of Associate Professor Jones, dated 1 August 2016.
Associate Professor Jones is a Consultant Physician in Rehabilitation Medicine. It appears that he saw the plaintiff a day or two prior to 1 August 2016.
The second report was that of Ms Borthwick, an Occupational Therapist, who saw the plaintiff on 26 July 2016, and produced a draft report dated 7 August 2016.
Associate Professor Jones, in his report, recorded that an Arabic interpreter was present during his consultation with the plaintiff. He recorded that he established a friendly, but difficult, rapport with the plaintiff. He reported that he was able, with the assistance of the interpreter, to communicate with the plaintiff, although it appears that the communication was not without its difficulties.
Associate Professor Jones recorded that the plaintiff was able to give him a description of her accident. He recorded that description in this way: "Carolin attempted to describe the incident of 3 January 2013 saying that she had fallen down the stairs as one step was broken, and she was wearing sandals with a small heel. The interpreter then said that her husband was not at the location where she fell, and Carolin went on to say that she fell down the stairs like a ball. There was an injury to the left side of her forehead and to the fingers of her right hand and no loss of consciousness."
The plaintiff was able to tell Associate Professor Jones that she felt psychologically "zero … I am very depressed". She said this in English. Associate Professor Jones reported that he was not able to undertake a full cognitive assessment "… because of the plaintiff's difficulties with her communication impairment".
Ms Borthwick noted various matters about her interaction with the plaintiff on 26 July 2016. She recorded the following matters: "1.2.2 … at this assessment Mrs Alzawy was polite and helpful. An Arabic interpreter was present … She spoke in both English and Arabic although was observed to resort to Arabic particularly when she was experiencing difficulty expressing herself. From [the interpreter's] report, her ability to express herself in Arabic was just as poor and appeared to be related to difficulties finding words or putting together a meaningful sentence regarding her current status. 1.2.3 Her voice production was also affected by a vibrato sound indicative of some physical affectation to the larynx and pharynx muscles possibly. Even with an interpreter it was very difficult without her husband's assistance, to understand the meaning she was trying to convey. 1.2.4 Emotionally, Mrs Alzawy was polite and helpful. She did not appear or report being in distress emotionally. Mrs Alzawy appeared happy and smiling when discussing her children. … 3.5.1 It was difficult to assess Mrs Alzawy's cognitive function today as she experienced difficulty expressing herself in English or Arabic. Due to her fatigue, the period of assessment was limited to 1.5 hours. She could identify that the Clonazepam was the medication responsible for her fatigue. 3.5.2 When able to express herself and be understood, her responses were appropriate to the questions asked. Mrs Alzawy was able to follow three step instructions. … 3.5.4 Attempt to complete the mini mental state examination was undertaken today. Mrs Alzawy demonstrated that she was oriented in time, place and in person. She commented that she could recall completing this assessment previously. However, to implement the assessment was time consuming and difficult due to language barriers and speech difficulties. Some dysarthria appeared to be present, although assessment by a speech pathologist competent in neurological management could confirm this. … … Mrs Alzawy demonstrated that she could communicate appropriately if not clearly, that she maintained appropriate social skills and behaviours during this assessment and that she could understand the concepts discussed. She expressed warmth and joy when discussing her children and their achievements. However, it was noted that she does not participate in their day-to-day activities to a great extent now."

Discernment

The test for admissibility of hearsay evidence through the gateway of s 63 of the Evidence Act requires a plaintiff to demonstrate that the witness is mentally or physically unable to give the evidence.
In my view, where the issue is one of mental inability, the question for the Court is not whether the witness will give evidence which may not be accurate or reliable, or whether the witness may find it difficult to concentrate and give such evidence, or whether the witness, by reason of a mental impairment, can only give evidence for short periods of time. Rather, the question is simply whether the witness is mentally unable to give "the evidence", being the hearsay evidence which is sought to be adduced.
The plaintiff's case that she is mentally unable to give the evidence is not borne out by the evidence before me. Undoubtedly, the plaintiff faces a physical disability in giving evidence; her voice has a vibrato. As well, it is clear from the reports of Associate Professor Jones and Ms Borthwick that there are some questions which the plaintiff is unable to answer, and some questions which the plaintiff is able to answer but to which the plaintiff is not always able to give a rational answer.
However, the evidence from Associate Professor Jones is that the plaintiff was capable of giving him, with the assistance of an interpreter, a description of the circumstances of her accident. The description which Associate Professor Jones records is not an irrational or improbable one. It is consistent with the plaintiff's case.
As well, Ms Borthwick's evidence suggests that she was able to communicate with the plaintiff and obtain a deal of information from her that provided a basis for Ms Borthwick's expert report and conclusions. It was not suggested by Ms Borthwick that the information which she obtained was unreliable or irrational.
The fact that the plaintiff is able to give evidence of the previous representations which are sought to be adduced is also confirmed by the evidence of her solicitor, Mr Sharpe. Mr Sharpe is an experienced litigation lawyer who has become accustomed to taking statements and instructions from, no doubt, many people in the course of his practice.
Mr Sharpe was careful, I thought, in his evidence to distinguish between his observation on 15 October 2014 that the plaintiff's physical and mental condition had deteriorated significantly on the one hand, and the reliability of the statement which he was able to take from the plaintiff that day on the other. The plaintiff was at that time capable of giving a lucid account of her accident to her solicitor. He recorded it. He read it back to her and she signed it. Mr Sharpe's evidence, which I accept, is that he had no concerns about the reliability of the contents of that statement.
When Mr Sharpe saw the plaintiff on 4 August 2016, he thought that the plaintiff's mental condition was about the same as it was on 15 October 2014. Mr Sharpe qualified that statement when he said that the plaintiff's mental condition might have been worse on 4 August 2016 than it was on 15 October 2014. However, his evidence did not suggest that the plaintiff was entirely incapable, by reason of her mental condition, of giving any evidence at all on the subject matter of the previous representations sought to be adduced by hearsay evidence.

Conclusion

Based upon all of this evidence, the plaintiff has failed to satisfy me that she is "unavailable", as that term is defined in the Evidence Act, because she is mentally or physically unable to give the requisite evidence. The plaintiff is both physically and mentally capable of giving evidence in a general sense. That general ability is, in my view, more than sufficient for her to be called to give evidence of her fall, which is the substance of the hearsay evidence which the plaintiff seeks to tender.
Accordingly, the application to adduce the hearsay evidence is rejected.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2016

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cited By (4)