Grech v Sutton

CASES CITED: Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472 at 479 Fitzgibbon v The Waterways Authority & Ors [2003] NSWCA 294

PARTIES: John Grech - Appellant Gary Russell Sutton - Respondent

COUNSEL: B J Gross QC/Dr J Bishop - Appellant P Doherty SC/I McGillicuddy - Respondent

SOLICITORS: Charleston Bishop Legal - Appellant Somerville & Co - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40749/2007

IPP JA HANDLEY AJA HOEBEN J

Thursday 26 February 2009 John GRECH v Gary Russell SUTTON JUDGMENT 1 IPP JA: I agree. 2 HANDLEY AJA: I agree with Hoeben J. 3 HOEBEN J: Nature of appeal On 3 January 2001 the respondent was a front seat passenger in a motor vehicle driven by the appellant. While travelling along the Wakehurst Parkway, the vehicle veered off the road and sideswiped a rock wall on its left. In the course of that collision, the respondent's left elbow and arm struck the rock wall causing serious injuries. 4 The respondent brought proceedings against the appellant in the District Court claiming damages under the Motor Accident Compensation Act 1999. Those proceedings were heard by Coorey DCJ on 20-22 November inclusive, 8 and 15 December 2006 and 4 May 2007. Judgment was given on 3 October 2007 and 11 December 2007. His Honour entered judgment in favour of the respondent for $907,943.56. In that judgment his Honour declined to make a finding of contributory negligence against the respondent. 5 The appellant has appealed from his Honour's finding that there was no contributory negligence and has sought a retrial restricted to that issue.

Conduct of trial and findings in the District Court 6 It was the respondent's case at trial that just before the collision he was holding a ceiling grab-rail in the vehicle with his left hand. When the vehicle suddenly veered to the left, he said that his left arm was thrown out of the window and was crushed between the vehicle and the wall. 7 It was the appellant's case that the respondent was probably resting his arm on the windowsill of the passenger side window in such a way that his elbow protruded beyond the boundary of the vehicle so that it came in contact with the wall. 8 To establish that proposition, the appellant relied upon the following evidence:

A statement by respondent to investigator, dated 22 February 2001: "Unfortunately I had my arm on the windowsill and it was crushed against the wall."

An unsigned statement by appellant to investigator, dated 28 February 2001: "Unfortunately Gary had his arm and elbow resting on the glass window which does not completely re-track into the door. This meant that his arm and elbow were sticking up and out of the window."

Report of Dr Phillip Haynes, dated 8 February 2002: "Mr Sutton had his elbow leaning on the window ledge."

Report of Dr John Douglas, dated 16 May 2002: "Mr Sutton's elbow was resting on the windowsill of the car at the time of impact, so that the elbow took most of the impact and the arm was dragged backwards."

Report of Ms Taylor-Fick, dated 30 May 2005: "Mr Sutton reported that he had the window down and had been resting his forearm along the windowsill at the time of impact."

Report of Dr David Bowers, dated 1 July 2005: "Apparently the car in which he was travelling veered off to the side of the road from its line of travel. His left arm was thrown out the passenger window and struck a rock wall."

Report of Dr Stephen Buckley, dated 29 August 2006: "Mr Sutton told me that he was a passenger in a vehicle when his mate driving, did a U-turn. He held on to the ceiling handle with his left hand but the car ran off the road and his left arm went out the window and became "wiped" between a rock wall and the vehicle." 9 It is clear from that summary that the only evidence which placed the respondent's left arm outside the boundary of the car was the unsigned statement of the appellant to the investigator of 28 February 2001. 10 The respondent was cross-examined as to the position of his left arm. He adhered to his evidence that he was holding a ceiling grab rail and denied that his left arm was resting on the windowsill. The respondent agreed that he had signed a statement for the investigator but said that he had not read it before signing it. 11 The appellant did not give evidence at trial; his evidence comprised the unsigned statement to the investigator of 28 February 2001. In that statement the appellant asserted that he was driving a Datsun Bluebird vehicle at the time of the accident and that the vehicle did not actually strike the rock wall. The investigator, a Mr McCaffery, and Ms Taylor-Fick gave evidence. 12 At trial it was accepted on behalf of the appellant that the vehicle involved in the accident was in fact a Holden and that it had struck the rock wall. Evidence was adduced on behalf of the appellant that when it was manufactured, the Holden motor vehicle (which was 30 years old) was not fitted with a ceiling grab handle. 13 On the second day of the trial when medical reports were tendered on behalf of the respondent, senior counsel for the appellant sought a "limiting order" in respect to the histories given to the doctors by the respondent. That order was sought pursuant to s 136 of the Evidence Act 1995. This application was not opposed and his Honour made the "limiting order" requested. 14 On the fourth day of the trial, senior counsel for the appellant sought to tender a report from a Dr Raju, dated 31 January 2002, addressed to the motor vehicle third party insurer of the vehicle involved in the accident. Doctor Raju was a general practitioner to whom the respondent was taken immediately after the accident. The importance of his report to the appellant's case was that part of the history which recorded: "The patient was in the passenger seat in front and his left arm was out of the window."

It was common ground that Dr Raju's report had not been served. The tender was objected to. After receiving written submissions from the parties, his Honour rejected the tender of the report. 15 On 15 December 2006 after the evidence had concluded, counsel for the appellant made an application that his Honour revoke the "limiting order" which he had earlier made in respect of the reports of Dr Haynes and Dr Douglas. That application was subsequently dealt with by the parties in written submissions. In a judgment of 4 May 2007 his Honour refused to revoke the "limiting order" previously made. 16 His Honour found that the vehicle involved in the accident was the Holden motor vehicle, not the Nissan Bluebird vehicle as the appellant asserted. His Honour also found that the vehicle had struck the rock wall with considerable force. 17 His Honour accepted the respondent as a witness of truth and accepted that he had signed the statement which he made to the investigator without reading it. He described the respondent as a "frank and unsophisticated person". 18 His Honour found that the respondent was holding a grab rail with his left hand before the vehicle struck the wall and that his left arm struck the wall after it was thrown out the window and was crushed between the wall and the vehicle. 19 On the specific issue of contributory negligence, his Honour found that the respondent's arm was not protruding beyond the vehicle before it was "thrown out the window". His Honour appeared to implicitly accept the submission of the respondent that, even if his arm had been resting on the windowsill, rather than holding the grab rail, this would not amount to contributory negligence.

Appeal Ground of Appeal 1 "In his judgment given on 4 May 2007 his Honour erred in law, erred in the exercise of his discretion by not partly revoking his previous order under s 136 of the Evidence Act limiting the use which could be made of certain histories given by the respondent as to the position of his elbow at the time of the accident." 20 In order to understand the difficulty confronting the Court, it is necessary to set out that part of the transcript dealing with the application under s 136 of the Evidence Act. His Honour made the order in the context of the tender by the respondent of medical reports. "NEIL: Now your Honour I have no objection generally but I would ask for a limiting order in respect of the accounts or versions given by the plaintiff because there's an issue about that. HIS HONOUR: 136? NEIL: Yes. HIS HONOUR: Are you happy with that Mr Doherty that a section 136 limit on the material provided to the doctors by way of history etc etc? DOHERTY: No problem with that." (Black 88C) 21 Despite the fact that written submissions were made to his Honour concerning the revocation of the "limiting order", the actual terms of the order were never articulated in the trial. The closest the parties and his Honour came to defining what was meant by the order emerged from the following exchange which occurred after evidence had been completed. "KELLEHER: On these matters might I just raise one further matter. I have indicated on the last occasion that we'd be seeking an order revoking the s 136 order limiting the use to which the history can be made to doctors. That would probably only apply now to one or two doctors' reports where the doctors have been unavailable. I could cover that in the written submissions if there's no problem with that your Honour. HIS HONOUR: I suppose that's true because under the Evidence Act I suppose prima facie they are evidence of the facts stated aren't they unless there's a limiting order made, isn't it? KELLEHER: Yes. Your Honour has in fact made a limiting order. HIS HONOUR: I did yes, under 136, yes. KELLEHER: And what we'd be seeking in circumstances as now appears from the issues in the trial is they are seeking that your Honour revoke your orders. It's probably best if I cover that or we cover that in the written submissions as well." (Black 182X - 183E) 22 The written submissions made to his Honour provide some assistance (appellant Black 200, respondent Black 211-214). The appellant's submissions were: "Part revocation of the order under s 136 of the Evidence Act. At T.88 a limiting order on the use of histories was made at the request of the defendant relating to histories given by the plaintiff to doctors (in particular note the "self-serving" history given to Dr Buckley). However, it has become clear (including material from the workers compensation insurer's file) that the plaintiff has consistently given a history of his arm being out of the window or resting on the window ledge to separate doctors. The repetition of this is unlikely to be due to error and in any event the statements are admissions under s 81 of the Evidence Act. The defendant therefore requests revocation of the limiting order except in relation to the report of Dr Buckley. A limiting order may be withdrawn at any time. The plaintiff has been cross-examined on these histories and has denied them, so he has not been denied an opportunity to deal with them." 23 The respondent's submissions are too lengthy to set out in full but their effect was to rely upon the decision of this Court in Fitzgibbon v The Waterways Authority & Ors [2003] NSWCA 294. The respondent submitted that where the history recorded in a medical report or medical notes is disputed, and the author is not called to determine the source of the history and its medical significance, the disputed history cannot amount to an admission. 24 In his judgment on the issue (Black 192) his Honour said: "The plaintiff submits that the s 136 limiting order should remain in relation to all disputed histories in the medical reports and notes and including reports from therapists, rehabilitation specialists, hospital records and so forth. The plaintiff relies on the decision of the Court of Appeal in Fitzgibbon v The Waterways Authority [2003] NSWCA 294. The issue in that case is similar to the issue before me, that is the defendant there sought to rely on admissions made by the plaintiff to ambulance and hospital employees. The Court of Appeal held that the defendant could not rely on the admissions said to be made by the plaintiff in a number of reports without calling the various authors of the reports to be available for cross-examination in relation to the following: (a) The source of the history given to the authors and; (b) The medical significance of the history given by the plaintiff. The essence of the defendant's argument is that the plaintiff has had the opportunity to test the reliability of the histories given by the plaintiff. I do not accept that argument. The cross-examination of the plaintiff was not a test of the reliability of the pre-trial histories given by the plaintiff. In order to test the reliability of the histories, the authors of the reports should have been called to give evidence in accordance with the requirements of Fitzgibbon v The Waterways Authority. I am satisfied that the s 136 order should remain in place." 25 The procedure at trial and the way in which the order was made is highly unsatisfactory. The problems associated with an order being made in such shorthand form are raised starkly by this ground of appeal. This Court is being asked to rule on an order and its non-revocation when the contents of the order have not been established. 26 In practical terms the application by the appellant to revoke the "limiting order" only related to the histories recorded by Dr Haynes and Dr Douglas. The "admissions" made to the investigator and Ms Taylor-Fick were already before his Honour since those persons had given evidence. From the written submissions and his Honour's judgment, the parties appear to have assumed that one effect of his Honour's "limiting order" was that the histories recorded by Drs Haynes and Douglas could not be used as admissions against the respondent. It is his Honour's refusal to revoke that part of the "limiting order" that appears to be the subject of this ground of appeal. 27 It was agreed on the appeal that at no time did the appellant seek to call Dr Haynes or Dr Douglas, nor did he seek an adjournment for that purpose. The argument before his Honour was restricted to the use to which the histories in their reports could be used. 28 The particular error on which the appellant relies is that his Honour wrongly applied Fitzgibbon. I agree. It was incorrect of his Honour to cite Fitzgibbon for such a wide-ranging principle. In Fitzgibbon there were particular deficiencies identified in the ambulance notes and the hospital notes which made it unfair for those notes to be used as admissions against a party without some explanation from the authors. This emerges clearly from the judgment of Foster AJA at [71-74]. 29 That does not end the matter. In re-exercising the discretion I would reach the same conclusion as his Honour and refuse to revoke that part of the "limiting order". The application for revocation was made late in the trial after the conclusion of the evidence. The trial had proceeded up to that point in time on the basis that the histories in these two medical reports were not to be regarded as admissions by the respondent. The question of where the respondent's arm was positioned in the car immediately before the accident was a central issue in the proceedings. Under cross-examination the respondent had disputed the accuracy of the histories. To change so late in the trial the basis upon which the histories recorded in those reports could be used without calling the doctors who had taken the histories, would have been unfair to the plaintiff. 30 In any event, the importance of this evidence was marginal. It did not establish contributory negligence. It was agreed in the appeal that resting one's arm on the windowsill without any part of it protruding beyond the boundary of the car did not amount to contributory negligence. The histories recorded by these doctors could only go to the plaintiff's credit. It is also significant that the appellant in fact relied upon these histories, if not as admissions then certainly as being corroborative of the "admissions" made to the investigator and Ms Taylor-Fick (appellant's submissions Black 227U). In reaching his conclusion his Honour clearly took those reports into account in that way (Red 17R). 31 Accordingly, while I would uphold this ground of appeal, on re-exercising the discretion I would reach the same result. Moreover, it does not raise a matter which would result in any interference with his Honour's judgment as to contributory negligence. 32 It is convenient to deal next with Ground of Appeal 7.

7. His Honour erred in the exercise of his discretion in refusing to admit into evidence the report of Dr Raju in that his Honour failed to properly consider all relevant factors bearing upon the exercise of his discretion. 33 The report of Dr Raju comprised three pages and was dated 31 January 2002 (Blue 560). The basis of his Honour's rejection of its tender was that it had not been included in the defendant's tender of medical reports (exhibit 3) and had not been served on the plaintiff in accordance with the Uniform Civil Procedure Rules (Black 189D). 34 This was a discretionary decision by his Honour and no error in his Honour's exercise of discretion has been demonstrated by the appellant. The rationale behind the rule in the District Court requiring the service of medical reports is to enable the party on whom the report is served to give notice to the serving party that the author of the report is required for cross-examination. The failure of the appellant to serve the report deprived the respondent of this opportunity. The problem was exacerbated by the late tender of the report. 35 For completeness, I should deal with a submission which was put somewhat faintly on behalf of the appellant. His Honour's decision to reject the tender of Dr Raju's notes was also criticised. A simple reading of the transcript makes it clear that at the time of the trial the authorship of those notes was unknown. It was only after judgment that the authorship of the notes was attributed to Dr Raju. The notes had not been served on the respondent. What his Honour rejected was the tender of an unserved bundle of medical notes, the authorship of which was unknown. His Honour's rejection of those notes was clearly correct. 36 In those circumstances his Honour's exercise of discretion in rejecting the report of Dr Raju and the notes did not miscarry and this ground of appeal fails. 37 The remaining grounds of appeal can be dealt with together since, in substance, they raise the same issue, i.e. a failure on the part of his Honour to properly consider the factual evidence which was contrary to the version of events put forward by the respondent.

"2. His Honour erred by failing to consider as admissions against the respondent on contributory negligence all of the histories given by him as to the position of his elbow at the time of the accident.

3. His Honour erred by failing to consider in relation to the contributory negligence issue why the respondent before seeing Dr Buckley some five and a half years after the accident, had given histories as to the position of his elbow at the time of the accident inconsistent with the respondent's version of events at trial as to the position of his elbow at the time of the accident.

4. His Honour erred in relation to the contributory negligence issue by: (a) Relying on the possibility, which itself was implausible, that the appellant's vehicle had been modified to add a ceiling handle or "assist strap". (b) Failing to adequately consider the evidence as to whether the vehicle did have a ceiling handle or "assist strap" which the respondent was hanging on to at the time of the accident.

5. In relation to the contributory negligence issue, his Honour erred, when considering the credibility of the respondent, in placing excessive reliance on the respondent's demeanour and upon the respondent's evidence that he had dismissed housekeepers sent by the "insurance company" because he believed they were cheating the insurance company.

6. In relation to the contributory negligence issue, his Honour erred in rejecting the evidence of Mr McCaffery as to the statement he took from the respondent, by failing to give adequate consideration to, and to subject to critical analysis, the whole of the evidence and arguments which were relevant to the question of what history was given by the respondent to Mr McCaffery.

8. His Honour erred in failing to give adequate reasons for his decision on the issue of contributory negligence." 38 In support of those grounds of appeal, the appellant sought to persuade the Court that the effect of the evidence specifically referred to in the grounds of appeal, was so persuasive as to invalidate his Honour's acceptance of the respondent as a witness of truth. The problem with that submission is the line of authority best illustrated by Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472 at 479: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable". 39 With all due respect to the efforts of senior counsel for the appellant (who did not appear at trial), none of the submissions made in respect of these grounds of appeal, either individually or collectively, were able to identify facts incontrovertibly established by the evidence which would displace his Honour's favourable findings as to the respondent's credit. 40 The other difficulty for the appellant arising from these grounds of appeal is that even if they were made out, they went no further than to establish that the respondent may not have been telling the truth when he said that he was holding a ceiling grab rail with his left hand, but that his left hand was resting on the windowsill of the vehicle. As previously indicated, it was accepted in the appeal that having one's arm in that position did not amount to contributory negligence. The only evidence of contributory negligence was in the unsigned statement of the appellant and the history recorded in the report of Dr Raju. 41 The tender of the report of Dr Raju was correctly rejected. The rejection of the evidence in the appellant's unsigned statement did not depend on his Honour's preference for the evidence of the respondent but on other unrelated evidence. The photographs (exhibit O - Blue 1223) made it clear not only that it was the Holden which had been involved in the accident and not the Bluebird, but that the impact with the wall had been substantial and had caused significant damage to the left side of the Holden. Apart from his preference for the evidence of the respondent, there were good reasons why his Honour not only rejected the appellant's evidence on those issues but on the question of whether the respondent's left arm or elbow was protruding beyond the boundary of the vehicle. 42 Once it is accepted that the evidence on this issue in the appellant's unsigned statement could be properly rejected for reasons unrelated to the respondent's credit, there was no evidence before the Court which could amount to contributory negligence. It follows that even if his Honour should have found that the respondent's left arm was resting on the windowsill of the vehicle, and that his credit in that regard was damaged, such a finding led nowhere since neither that nor any other evidence established contributory negligence. To take the next step and argue that if, contrary to his evidence, the respondent's arm was resting on the windowsill of the vehicle it might also have been protruding beyond its boundary is to engage in impermissible speculation. I have concluded that even if these grounds of appeal were made out, they do not form a proper basis for overturning his Honour's finding of contributory negligence. Accordingly these grounds of appeal fail. 43 The orders which I propose are:

(2) By consent the appellant to pay the respondent's costs on an indemnity basis from 4 March 2008.

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