Tedmund Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council & Ors

By way of an Amended Statement of Claim filed on 9 March 2017 the plaintiff alleges that he sustained serious injuries in an accident on the Coffs Harbour Jetty on 30 September 2011. He was 5 at the time. As pleaded in paragraph 14 of the Amended Statement of Claim, he alleges that, as he was walking along and/or situated on the jetty, he fell through a railing fence affixed to the jetty, falling a distance of approximately 5 metres. He sustained severe injuries, including a brain injury. He seeks damages from five defendants. The first and third defendants are jointly represented and are alleged to have owed a duty of care on the basis that they were owners and occupiers and had the care, control and management of the jetty. Proceedings have been discontinued against the second defendant.

As set out in paragraph 6 of the Amended Statement of Claim, it is alleged by the plaintiff that the fourth defendant was the owner and/or occupier of the jetty. The fifth defendant, Betty Whitton and the sixth defendant, David Whitton were the grandparents of the plaintiff and are alleged to have had the care and/or supervision of the plaintiff at the relevant time. The cause of action against all defendants is in negligence.

On the first day of the hearing, the plaintiff tendered two documents known as “NSW Police Force COPS Reports”. The first document has a reference no. E45861048 and I have marked it Exhibit 21, subject to objection. The second document is marked Case Report C45718627 and I have marked that as Exhibit 22, subject to objection. The fifth and sixth defendants have objected to the admissibility of the COPS reports on the basis that the documents are not business records. They also object to a particular paragraph which is contained in both documents as follows:

Mr Sheldon of Senior Counsel who appears with Mr Walsh of Counsel on behalf of the first and third defendants informed me during the plaintiff’s opening that the circumstances or mechanics of the fall are in dispute. It is not in dispute that the plaintiff was with his grandparents on the jetty immediately prior to his fall and that he fell onto the hard sand below and sustained serious injury.

The first and third defendants objected to that part of the paragraph commencing with the second sentence, submitting that the sentence contained a form of second hand hearsay without any identification of the source of the information contained therein. Otherwise, the first and third defendants did not object to the admission of the COPS reports. The fourth defendant essentially adopted the position of the first and third defendants, but added that as the police officers did not witness the incident, there would need to be evidence that the police officers spoke to the persons who were there and could make the relevant representation.

Mr McIlwaine of Senior Counsel who appears with Mr Quickenden of Counsel on behalf of the plaintiff, in response, submitted that the police investigated the incident and that they no doubt spoke to various people and then prepared a report. He submitted that if they (the defendants) wanted to object on the basis that the plaintiff had not sufficiently complied with s 69(2)(b) of the Evidence Act 1995 (“the Act”), then they could call the police officer but because they are business records prima facie, the plaintiff was entitled to rely on the report. Mr Walsh, on behalf of the first and third defendants, further submitted in response that the matter could be proved by the plaintiff by calling a witness in the usual way, rather than through a document, when the source of the information is silent. Mr Walsh accepted that the COPS reports were business records.

I consider that the COPS reports are business records. The term business is defined in clause 1 of part 2 of the dictionary and includes any activity engaged in or carried out by the Crown in any of its capacities. I do not consider that s 69(3) of the Act applies on the evidence before me. The COPS reports were not prepared or obtained for the purposes of conducting or in contemplation of or connection with an Australian or overseas proceeding or made in connection with an investigation relating or leading to a criminal proceeding. There is nothing, on the face of the documents, which allows me to draw that inference.

The remaining issue is the admissibility of the identical paragraph in both COPS reports. As set out in s 69(2) of the Act, the hearsay rule does not apply to the document insofar as it contains the representation if the representation was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact or on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have personal knowledge of the asserted fact. Section 69(5) of the Act sets out the circumstances in which a person is taken to have personal knowledge of the fact.

The principles to be applied are conveniently summarised by Leeming JA in Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd v Calleja [2018] NSWCA 26 (26 February 2018) as follows:

In Lithgow City Council v Jackson (2011) 244 CLR 352, the Court considered a somewhat similar representation in a patient healthcare record. It is not necessary to further consider all of the issues raised in that matter except to say that for the purposes of s 69(2) of the Act, the Court emphasised that personal knowledge can only be derived from seeing or perhaps hearing of the event, not by drawing inferences from other circumstances observed some time later.

Turning now to the paragraph, the subject of objection, the Court is allowed to draw inferences, not just from the form of the document, but from the nature of the information contained in it.

The plaintiff tenders the COPS reports prior to calling in any oral evidence. I am informed by Mr McIlwaine that Betty Whitton will be the first witness. There is no dispute that Betty and David Whitton, being the fifth and sixth defendants, were on the jetty with the plaintiff. I would infer, in the circumstances that, the information set out in the first and final sentences of the paragraph the subject of objection, was supplied by a person who had or might reasonably be supposed to have had personal knowledge of the matters set out therein.

However, although there is no dispute that the plaintiff fell a distance of approximately 6 metres onto the hard wet sand below, and thus it would not matter whether that part of the sentence is admitted, the asserted fact relevant to s 69(2) of the Act is that “the young child has then gone to the northern side of the pier and fallen under the bottom metal rail”. This is in issue.

There is nothing in the COPS reports themselves which would allow me to infer that the representation contained in the COPS’ reports was made on the basis of information directly or indirectly supplied by a person who had or might reasonably supposed to have had personal knowledge of the asserted fact. It may be that the representation is an opinion of the particular police officer or officers who completed the reports but the police officers did not see the fall. They were not there. It may be that the police officer was intending to record that which he had been informed by Betty or David Whitton but there is nothing in the documents or other evidence yet admitted which allows me to draw that inference. Whilst I do not accept that it would always be necessary to identify the source of the information in the document itself (see Lancaster v The Queen [2014] VSCA 333; 44 VR 820; 247 A Crim R 165), I do not consider that I can infer, on the information available to me at this time, that the representation was made on the basis of information either directly or indirectly supplied by a person who had or might be supposed to have had personal knowledge of the fact (having regard to s 69(5) of the Act), rather than it being merely an opinion which was formed at some stage by persons not identified.

In the circumstances, the two COPS reports will be admitted as Exhibits 21 and 22, except that the words “the young child has then gone to the northern side of the pier and fallen under the bottom rail” are rejected, as is the balance of the sentence, as it does not make sense alone and is not in issue in any event.