Hurley v Southwick [1999] VSC 326

5. During the trial it was alleged that a light fitting in the vicinity of the stairwell where the plaintiff's fall occurred was not operative at the time of the fall. From the pleadings it appeared that the managing agents of the property were alleged to have failed to keep the stairway clean and safe and to repair the light and that an electrician engaged by the agents to attend to various electrical repairs at the premises failed to inform the agents of the malfunctioning light or to repair the light. The defendants joined the managing agents as third party. The third party joined the electrician as fourth party. These matters provide no more than a broad overview of the allegations on the pleadings. Significantly, the defendant alleged contributory negligence against the plaintiff on a number of bases but including an allegation that the plaintiff exposed himself to the risk of injury whilst intoxicated by alcohol. Further, as the trial progressed it became an issue between the parties as to whether the plaintiff had in fact fallen over the guardrail of a first floor balcony or fallen over a lowered handrail of the stairway adjoining the balcony.

8. The plaintiff was found lying unconscious at about 10.30 p.m. at ground level towards the front of 3 Church Square, St Kilda. No-one witnessed the fall. Ambulance services were called to the scene. The plaintiff's wife, Kim Hurley, was present for part of this time together with other persons such as neighbours of the plaintiff and his wife. Subsequently the plaintiff was conveyed to the Alfred Hospital and arrived there at a time around 11.20 p.m. Initially the plaintiff was taken to the trauma centre at the hospital and later transferred to the emergency department. At a later point he underwent surgery carried out by neurosurgeons. The plaintiff remained as an inpatient at the Alfred Hospital until his discharge on about 30 November 1993 when he was transferred to the Austin Hospital.

11. The defendants obtained on subpoena from the Alfred Hospital six hospital records which they seek to put into evidence together with relevant ambulance records. In the course of the trial the issue arose as to the admissibility of those medical records.

14. There were four particular issues of fact that were in clear dispute between the plaintiff and defendants on the evidence. Firstly, whether the plaintiff was intoxicated at the time of the fall and, if so_,_ to what extent. Secondly, whether the plaintiff had been drinking throughout the day prior to his alleged fall. Thirdly, whether he had a history of alcohol abuse and associated high blood pressure. Fourthly, whether the plaintiff fell over the guardrail of the balcony or the handrail at the top of the stairway leading from the balcony. The ambulance and hospital records contained notations to the effect that the plaintiff had been drinking during the day of the fall including drinking heavily, that he had a past history of alcohol abuse and high blood pressure and that he fell from the first floor balcony.

17. The contents of the ambulance and hospital records first came to light in the trial when their contents were put to the wife of the plaintiff. It was suggested to Mrs Hurley that at the relevant time the records were made she was the source of the information recorded as she was the only person with the plaintiff at the hospital and interviewed by medical staff, the plaintiff being unconscious at the relevant time.

20. During cross-examination, Mrs Hurley gave evidence that at the time of the attendance by the ambulance at the accident scene and later upon admission and attendance at the hospital she was in a state of shock and under a great deal of stress. She admitted in evidence that she assumed she was the source of information for the notations in the various reports but that she could not remember precisely what she said or the words she used.

23. The relevant records included the ambulance record and the hospital patient registration made at the time of the admission of the plaintiff. Both documents were admitted into evidence by consent.

26. The remaining hospital records were made by doctors who Mr Gillies QC for the defendants indicated would be called by him.

29. Mr Meldrum QC for the plaintiff objected to the latter category of reports being admitted into evidence in their entirety. He submitted that the reports contained notations which were allegedly made on the basis of information provided by Mrs Hurley but as yet not proved. Furthermore, he submitted that as the statements were allegedly made by her and she had no recollection of what she said, the statements constituted hearsay and ought not be admitted into evidence. Mr Meldrum submitted, further, that, in a event, an matter of discretion I ought not admit the documents in their entirety into evidence as it would inexpedient in the interests of justice for the documents to be so admitted.

32. There was an additional document contained in hospital records consisting of the "inpatient progress note - medical" dated 26 November 1993. Mr Gillies informed me that he was instructed that the defendant had been unable to locate the doctor who was the author of the report. He sought to tender the document nevertheless.

35. On the basis that the medical authors of the reports will be called, it follows that the disputed document on their face are admissible. If it transpired that the particular doctor was unable to confirm and adopt the contents of the relevant report it may be necessary to provide the jury with the appropriate cautions. The matter would be dealt with if and when necessary.

38. In any event, with the exception of the inpatient progress note, all of the reports are admissible pursuant to a.55(1) of the Evidence Act 1958. Section 55(1) provides:

"55(1) In any legal proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall be admissible as evidence of that fact if -

(a) the maker of the statement had at the time of the making of the statement personal knowledge of the matters dealt with by the statement, and is called an a witness in the proceedings; or

(b) the document is, or forms part of, a record relating to any business and made in the course of that business from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding".

45. Section 3(1) of the Evidence Act defines "business", as including "public administration and any business profession occupation calling trade or undertaking whether engaged in or carried on by the Crown, or by a statutory authority, or by any other person, whether or not it is engaged in or carried on for profit.

48. There is ample authority that a hospital constitutes a "business" for the purposes of legislation in the nature of section 55 of the Evidence Act (see Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542; R. v Perry (No. 3) (1981) 28 SASR 112). There is further authority that hospital records of admissions, treatment and discharge of a patient made by servants and agents of a hospital constitute a log of that hospital and are properly admissible in evidence (see Warner v The Women's Hospital [1954] VicLawRp 59; (1954) VLR 410, per Sholl J, especially 413.

51. The starting point in determining the question of admissibility is that provisions such as s.55 of the Evidence Act should not be restrictively construed (see Moreley v National Insurance Co [1967] VicRp 59; (1967) VR 556, 567; and R v Ernst & Ors [1984] VicRp 49; (1984) VR 593, 596; and Wielgus v Wielgus [1959] VicRp 30; (1959) VR 193).

54. It is apparent that upon the calling of the medical authors of the relevant reports (with the exception of the inpatient progress note) those doctors would be able to satisfy the requirements of s.55(1)(a) of the Act in that they ought have personal knowledge of the matters dealt with in the report save for the actual circumstances surrounding the alleged fall of the plaintiff, whether over a balcony or otherwise, whether he had been drinking or drinking heavily all day prior to the alleged fall and whether he had a history of alcohol abuse and high blood pressure. It appears unlikely that the relevant doctors would be able to give evidence of the truth of those matters but would be able to give evidence that those matters were said by the wife of the plaintiff. It follows that those aspects of the report could not be tendered by reliance upon of the Evidence Act.

57. Nevertheless, s.55(1)(b) enables a record to be admitted where it contains information supplied by a person who had or may reasonably be supposed to have had personal knowledge of the matters within the information supplied and that person is called as a witness. It follows from consideration of the evidence of the wife of the plaintiff that she had knowledge as to whether the plaintiff was intoxicated, of whether she knew or said she knew that he had been drinking all day or drinking heavily all day before the accident and of whether he had a history of high blood pressure. It unclear as to whether she had knowledge of a history "alcohol abuse" but she did have knowledge of the drinking habits of the plaintiff and said in evidence that she was anxious to give as full a history as she possibly could to the doctors attending to the plaintiff at the time of his admission, particularly as he was about to undergo surgery.

60. The use of the words in s.55(1)(b) "may reasonably be supposed to have had personal knowledge of the matters dealt with in the information" are significant. On the basis of the principle already adverted to, that legislation in the nature of s.55 is intended to be construed liberally and without undue restriction, I consider it correct to assume that at the time the hospital reports were made it could be reasonably supposed that Mrs Hurley had personal knowledge of the matters dealt with in the information supplied. I am satisfied that at the time the report were made, notations were entered concerning the plaintiff based upon information supplied by his wife who had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the information supplied.

63. Furthermore, s.55C of the Evidence Act permits the court to draw any reasonable inference from the form and contents of the documents sought to be tendered under s.55, or from any other circumstances. The section provides:

"55C For the purpose of deciding whether or not a statement is admissible in evidence by virtue of Section 55 or section 55B, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances."

67. I am satisfied that a reasonable inference can be drawn from the contents of the hospital reports when considered in the context of the evidence given by the wife of the plaintiff that she had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the reports. She has been called as a witness in the proceeding. Accordingly, I am satisfied that the requirements of s.55(1)(b) of the hospital reports are fulfilled insofar as the medical authors of such documents are unable to satisfy the requirements of s.55(1)(b) of the Act.

70. Mr Meldrum relied upon s.55(9) of the Evidence Act. It provides:

"55(9) The court may in its discretion reject any statement or defer the admission of and subsequently reject any statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to be inexpedient in the interests of justice that the statement should be then admitted or, as the case requires, should be admitted at all".

74. Mr Meldrum submitted that in all the circumstances of the case the matters contained in the hospital reports were so unreliable and potentially prejudicial to the case of the plaintiff they should not be admitted into evidence in the interests of justice as provided under s.55(9) of the Evidence Act. He relied upon the observations of Spender J in Supetina Pty Ltd and Anor v Lombok Pty Ltd & Ors [1984] FCA 376; (1984-85) 59 ALR 581 where a document was not admitted into evidence because it related to a central question in the proceeding and was evidence which was "susceptible of great subjectivity" (at 587). The case was concerned with the admissibility of a valuer's report in the context of a trial where valuation evidence had yielded widely differing conclusions. There was also the issue of the weight to be allocated to the evidence on the basis of the assessment by the trial judge of the person giving the valuation report. I observe that those factors do not arise in the matter before me. Ultimately, Spender J expressed the view that given the centrality of the material to the proceeding it would be unfair to allow the evidence to be admitted as it could not be tested. In my view, the circumstances of the present matter can be distinguished from those that led to the exercise of the discretion in Supetina In the present matter the notations contained in the hospital reports, whilst of a central nature, can be tested when each of the medical authors are called to give evidence. Furthermore_,_ a critical distinguishing factor is that as matters stand the wife of the plaintiff has acknowledged that she would have been the source of the information noted in the hospital reports. Weighing all these matters up, therefore, I do not consider it is appropriate to exercise the discretion contained in s.55(9) of the Evidence Act.

77. The remaining matter to be considered is the admissibility of the inpatient progress notes. The proposed admission into evidence of the records was supported by Mr Stanley QC for the third party and Mr Ruskin QC for the fourth party. Mr Stanley, in addition to adopting the submissions of Mr Gillies, relied upon the judgment of the New South Wales Court Appeal in Albrighton v Royal Prince Alfred Hospital & Ors, supra. In that case the plaintiff brought a claim of medical negligence against a hospital and doctors. In the course of the trial the hospital and doctors opposed the tender of the complete hospital medical records concerning the plaintiff. The medical records of the hospital were the subject of a subpoena and debate ensued at trial as to their admissibility pursuant to the New South Wales legislative provisions. The records were not admitted. The Court of Appeal held that the records were admissible. The authority is of limited assistance in determining the present matter because the provisions of Part 11C of the Evidence Act 1898 (New South Wales) impose a different and indeed more liberal regime than that provided in s.55 of the Victorian Act. However, observations can be drawn from the judgment of the court particularly the observations of Hope JA (at page 548-549) to the effect that hospital records are proper records made by persons who have no interest other than to record matters accurately relating to the businesses with which they are concerned and, once received in evidence, they are evidence for all purposes. The Albrighton case provides a useful statement of policy with respect to hospital records but it is not an authority I rely upon in determining the admissibility of evidence in this trial because of the differences between the Victorian and New South Wales statutes.

80. However, the principle in Albrighton is consistent with that expressed by Sholl J in Warner v The Women's Hospital, that is to say that a hospital record constitutes a "log" of what happens to the individual whilst at the hospital. In the present matter the plaintiff was admitted to the Alfred Hospital and during that time statements were made to the relevant treating doctors and recorded in the files and records of the hospital. The information provided by the wife of the plaintiff was a part of the log of the hospital as to what happened to him during his presence there.

83. Accordingly, all of the hospital records sought to be tendered by the defendants (except, at this point the inpatient progress note) are admissible.

86. Turning to the inpatient progress note and its admissibility, the report contains notations which Mrs Hurley has acknowledged she would have given to the relevant doctor. I am satisfied_,_ therefore, on the bases already stated that the requirements of s.55(b) have been made out and the report in admissible. In any event, given that the inpatient progress note forms one of a number of reports made during the admission of the plaintiff to the hospital and that it is consistent with the other reports and, also, the fact that it contains matters which the wife of the plaintiff admits she was the source of knowledge, I consider that it would cause undue delay and expense for the defendants to be required to search and seek out the identity of the doctor who made the note, more so, given that the note was made over six years ago. In this respect I rely upon s.55(7) of the Evidence Act which permits a court "if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused" to allow a document into evidence notwithstanding that the maker of the statement is not called.

89. It follows that the objection on behalf of the plaintiff is disallowed and all of the hospital records sought to be tendered by the defendants are admissible and will be received in evidence.