TORTS - Negligence - Road accident cases - Liability of drivers of vehicles - Failure to look-out - Pedestrian accidents
186 CLR 297
R v Clark [2001] NSWCCA 494
Source
Original judgment source is linked above.
Catchwords
TORTS - Negligence - Road accident cases - Liability of drivers of vehicles - Failure to look-out - Pedestrian accidents186 CLR 297
R v Clark [2001] NSWCCA 494
Judgment (2 paragraphs)
[1]
Judgment
This is a case where a man claims he was run over by another man who was driving a car. He says the other man swerved towards where he was standing beside the road and injured him. The man driving the car denies he did and denies that he was in any way negligent for the injuries which the man at the side of the road received. The man at the side of the road is Mr Glohe. The man driving the car is Mr Simington.
The case started before me in Orange on 23 November 2015. Mr D R Toomey SC, who appears with Mr D Woodbury, called his client, Mr Glohe, to give evidence. Other witnesses were called. Mr P D Ryan, who appears for Mr Simington, called his client to give evidence a few days into the case. In circumstances which will be obvious from the transcript, Mr Simington could not complete his evidence. The case was adjourned for directions and further hearing to Sydney.
Today Mr Ryan has produced and tendered an affidavit of a Ms Burrows dated 17 March 2016. It became exhibit VD3. It attaches a report from Dr Andrew Robertson, a consultant psychiatrist. That report concludes that "Mr Simington is psychiatrically unfit to give evidence in this matter." To address the fact that his client is not able to complete his evidence, Mr Ryan tenders exhibit 1. Exhibit 1 is the transcript of an interview between the police and his client taken at the time of the accident. Exhibit 1 is presently limited under s 136 of the Evidence Act 1995. The effect of that limitation is that the account given by Mr Simington in that interview is not evidence of the truth of that account.
Anthony Glohe v Nicholas Simington [2016] NSWDC 127 | Case summary | Zoe
Mr Ryan therefore tenders today a CD of that interview. It became MFI 12. At the same time, Mr Ryan applied for me to remove the limitation I had placed upon the use to be made of exhibit 1. Mr Toomey objected to both of those steps. They have both argued the point before me this morning. I have taken the morning tea adjournment plus some additional time to consider their arguments. I was assisted by both of them and, in particular, by MFI 13, an outline of submissions prepared by Mr Ryan which he pointed out was still in draft form.
The first point taken by Mr Toomey was that, in tendering MFI 12 (the audio account of the interview between Mr Simington and the police), Mr Ryan or those instructing him had not given the notice required by s 67 of the Evidence Act. That section indeed provides that a party must give "reasonable notice in writing to each other party of the party's intention to adduce the evidence." I am empowered by s 67(4) to relieve Mr Ryan of the need to provide such notice.
Mr Ryan pointed out that, by service of the affidavit and report of Dr Robertson, Mr Toomey and his client effectively received that notice. I do not think that is right for the reason advanced by Mr Toomey that the correspondence accompanying the service of the affidavit made it clear that the psychiatric report was relevant because "we will not be in a position to call the defendant to give further evidence at the hearing." It made no mention of the tender of a further account by the defendant, which is the subject of one of Mr Ryan's applications.
However, as Mr Ryan pointed out, Mr Toomey could hardly be taken by surprise by the existence of the recording because a transcript of the recording is already in evidence, subject to limited use, in exhibit 1. In addition, both counsel are very experienced practitioners and it was also obvious in Orange and in directions in Sydney that there was a real issue about Mr Simington's capacity to give further evidence. It would, in the circumstances, hardly come as a surprise that Mr Ryan might try to substitute another account by his client for that evidence. I should add here, however, that his client had completed his evidence in chief and was being cross examined by Mr Toomey.
I do not propose to reject the tender on the basis of the lack of notice.
Mr Toomey's second and third objections are related. He points to the wording of Dr Robertson's report. To provide some context, I should add that Mr Toomey cross examined Mr Simington in Orange. Mr Simington is diagnosed as having an autism spectrum disorder but without accompanying intellectual impairment. Dr Robertson thought that "he may also still have attention deficit disorder." I am quoting from the report, which is part of exhibit VD3. The report referred to the cross examination and suggested that it was "probable" that the cross examination had the effect of triggering a "major depression" in Mr Simington. The doctor went on to say that he thought -
"This indicates that, if he were to be subject to cross examination again, a similar line of questioning could be expected to occur, where he is asked the same question, with slight variations, to that which he has already answered. It is consistent with his autism disorder that this would have a disturbing effect on him."
What Dr Robertson described as the "psychiatric disturbance generated by his cross examination" persisted, in his view, for some months and has generated in a "very strong fear of having to be in the witness box again." It extends to giving evidence by indirect means as well, such as Skype. The doctor expressed the opinion that if Mr Simington "was forced to give evidence and undergo cross examination again, the psychiatric disturbance which this would generate may be far worse than on the original occasion."
Mr Toomey argued that the opinion of the doctor is in qualified terms and refers to the same questions being asked "with slight variations, to that which he has already answered." Mr Toomey pointed out that with suitable directions from me, that particular problem could be avoided. A related submission is that Mr Simington does not fall within cl 4 of the Dictionary to the Evidence Act. I should add the Dictionary is relevant because Mr Ryan relies on Dr Robertson's report to demonstrate that his client is "not...available to give evidence" because he is a "person" who is "mentally...unable to give evidence and it is not reasonably practicable to overcome that inability."
Mr Toomey's first argument relates to that reasonable practicability to overcome the inability by the directions. His related argument is that the evidence does not place Mr Simington within cl 4(1)(c) of the Dictionary definition. I do not agree with Mr Toomey's submission. I think it would be too difficult to refine by directions the questions which he may or may not answer so as to avoid the outcome predicted by the psychiatrist. In any event, the psychiatric opinion is untested. It would not surprise me if the condition diagnosed or explained by the psychiatrist would relate to any prospect of being cross-examined and that would put the witness at risk. It would also be difficult to see how Mr Toomey could cross-examine without challenging any prior inconsistent statements in the form of comparison between evidence given by Mr Simington on this occasion and evidence given in Orange, or any inconsistencies within his evidence given on this occasion. Such questions would clearly fall within the scenario envisaged by Dr Robertson as putting Mr Simington at risk.
To my mind, Mr Simington is a person who is not available to give evidence because he is mentally unable to give that evidence and I do not see any reasonably practicable way of overcoming that inability. Subject to what I will say further, in my view Mr Simington, for the purposes of s 63 of the Evidence Act, is "not available to give evidence about an asserted fact."
Mr Toomey's fourth objection concerned another basis on which Mr Ryan appears to be tendering the document. He relies on s 64 of the Evidence Act and points out, in accordance with subs (4) of that section, that his client has concluded his evidence-in-chief and that he may therefore tender the document. However, as Mr Toomey points out, the section applies "if a person who made a previous representation is available to give evidence about an asserted fact." I have just found that Mr Simington is not available to give evidence and therefore any basis relied upon by Mr Ryan by reference to s 64 falls away.
I come now to the final objection by Mr Toomey. He relies on s 35 of the Evidence Act which provides that a Court "may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might...be unfairly prejudicial to a party." Mr Toomey argues that the unavailability of Mr Simington for further cross-examination by him is unfairly prejudicial to his client. Most of the argument turned upon that provision. The factors argued relating to s 135 are also relevant to Mr Ryan's second application that I lift the limitation that I had previously put on the use of exhibit 1 under s 136 of the Evidence Act. I may limit the use of such evidence "if there is a danger that a particular use of the evidence might...be unfairly prejudicial to a party."
If I have not said so already, both Mr Toomey and Mr Ryan referred me to a number of authorities. Some of those are also set out in Mr Ryan's written submissions. I have consulted most of those authorities.
The Court of Appeal in this State has made a number of things clear. The first is to emphasise the statutory requirement that any danger is that the evidence might "be unfairly prejudicial to a party" (emphasis added). As the Court of Appeal pointed out in Leybourne v Permanent Custodians Limited [2010] NSWCA 78, in a joint judgment of Giles JA, Tobias JA and Sackville AJA at [82], "any prejudice must be unfair prejudice, and there is not unfair prejudice merely because evidence supports the opponent's case." The second observation made in the same paragraph by their Honours is that "it has been said that inability to cross-examine the maker of a representation can constitute unfair prejudice." Their Honours refer to a number of authorities which support that proposition and also add, apparently by way of some qualification to the generality of the proposition, a reference to McHugh J's judgment in Papakosmas v The Queen [1999] HCA 37; 186 CLR 297.
At [92], McHugh J quoted from the Australian Law Reform Commission's interim report on the topic of "unfair prejudice", illustrating its meaning is related to a danger that the fact finder "may use the evidence to make a decision on an improper, perhaps emotional, basis, i.e., on a basis logically unconnected with the issues in the case." McHugh J at [93] referred to some "recent decisions" which suggest that the term "unfair prejudice" may have a "broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as a result of admitting evidence under the provisions of the Act." His Honour made it clear that it was "unnecessary to express a concluded opinion on the correctness of these decisions" but added that he was "inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of 'prejudice' in the context of rejecting evidence for discretionary reasons."
The Court of Appeal in Fulham Partners LLC v National Australia Bank Limited [2013] NSWCA 296 reaffirmed the point about the meaning of "unfair prejudice" over [70 - 71] but also, at [69], by reference to a decision of Heydon J, as his Honour then was, in R v Clark [2001] NSWCCA 494; 123 A Crim R 406 at [164], emphasised the role of the hearsay exceptions in the Evidence Act being intended to be different to the former common law. However, in the same case at [68], by reference to the evidence in that case, their Honours said that that case "was not a case in which primary facts, depend on the capability of an individual to observe and recall, was in issue."
Mr Toomey went to that passage and compared it to the evidence being tendered in this case, which was an account of the accident at variance with his own client's account. The central issue in this case is what happened in the accident or how Mr Glohe came to be injured. The account given by Mr Simington is quite different to the account given by Mr Glohe. Mr Toomey also pointed to the fact that Mr Simington, in the document that is being tendered, was being interviewed by the police. Although he was there voluntarily and not as a suspect, nevertheless he was asked to give an account of an accident which resulted in the injury of another person. It would be expected, argued Mr Toomey, that he would be somewhat defensive - being interviewed by the police in such circumstances - and that would reduce the probative value of any account given by him if tendered in evidence.
TOOMEY: Your Honour, I should say that that's the submission that I withdrew. My submission was that it would be inherently unreliable and that that could affect the probative value. But that's the submission that I withdrew, as I think that IMM is against me in that regard.
HIS HONOUR: Yes, but you qualified it by maintaining that - just remind me.
TOOMEY: Yes, what I maintained was that, because of the circumstances and the inherent unreliability of that account, it can still be taken into account when it comes to consider the danger of unfair prejudice in my not being able to cross examine that witness.
HIS HONOUR: So it's related to the cross examination.
TOOMEY: Yes, and the danger of unfair prejudice, but it cannot be related to the probative value.
Mr Toomey has correctly drawn to my attention that he withdrew the submission I just attributed to him and I no longer take into account any impact which the circumstances of the interview between Mr Simington and the police might have on the probative value of the document which is to be tendered. Nevertheless, Mr Toomey emphasises that it is a factor to be taken into account in weighing the unfair prejudice to his client.
I am against Mr Toomey in his submissions. I do not propose to refuse to admit the tender of the document on the basis that its probative value is substantially outweighed by any danger that it might be unfairly prejudicial to Mr Toomey's client. I have in mind what has been referred to in the High Court as the "policy intention" of the Evidence Act to broaden the circumstances in which hearsay evidence may be admitted. Next I have in mind that Mr Toomey has already, to some extent, cross examined Mr Simington. In addition, that cross examination has touched upon the document which is proposed to be tendered, namely, the account given by Mr Simington to the police. Next I bear in mind that Mr Toomey will be able to make a submission of the kind referred to by Sackville J when his Honour was sitting in the Federal Court of Australia in Seven Network Limited v News Limited (No 8) [2005] FCA 1348 at [21] where his Honour referred to circumstances where it is a judge rather than a jury who is the trier of fact and "the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in…cross examination."
There will obviously be some prejudice to Mr Toomey but it is not, in my opinion, unfairly prejudicial to his client, nor is the probative value of what Mr Ryan proposes to tender substantially outweighed by any such danger.
For those reasons I propose to admit into evidence MFI 12 and I propose to remove the limitations which I earlier placed on exhibit 1 under s 136 of the Evidence Act.
[2]
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Decision last updated: 11 July 2016