DIMITRY v McPHEE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KIRBY P, MEAGHER JA and POWELL JA 24, 29 March, 30 June 1995 [1995] NSWCA 125 EVIDENCE — admissibility of documentary evidence — personal injuries damages action — young pedestrian collides with tow truck — conflict as to speed and position of truck — tender of P4 traffic accident report — primary judge (Cole J) rejects tender expressed to be under the Evidence Act 1898 s14B — held: (by the Court) The report was admissible (per Meagher and Powell JJA) under s 14CE of the Evidence Act or possibly (per Kirby P) under s 14B as tendered-but the rejection of the tender was not material — the report, even if it had been admitted, would not disturb the judge's findings that the claim should be dismissed upon Cole J's acceptance of the credit of the defendant and two independent witnesses called by him about the way the accident happened. Utting v Luhatala, Court of Appeal (NSW), unreported, 9 November 1983; 6 Petty Sessions Review, 2857; R v Hawes (1994) 35 NSWLR 294 (CCA) consd. APPEAL — credit finding — motor vehicle accident involving collision between young pedestrian and tow truck — pedestrian suffers amnesia — primary judge (Cole J) accepts evidence of tow truck driver and independent witnesses — dismisses claim of negligence — whether finding glaringly improbable — whether Court of Appeal authorised to disturb finding — held: It is not. Devries v Australian National Railways Commission (1993) 177 CLR 472 applied. DAMAGES — multiple injuries — psychiatric damage — response of injury to young boy alleged over-protectiveness — whether subsequent mental disturbance could be attributed to such accident as a result of the consequent over-protectiveness of the boy's parents — held: On the evidence, it could not. Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 (CA) distinguished. Kirby P. This appeal must be dismissed. l agree with the other members of the Court that the traffic accident (P 4) report should have been admitted into evidence. It is not, in the view which I take, necessary to resolve the question whether it was admissible under s 14B of the Evidence Act 1898 or under s 14 CE. I am inclined to the view that it was a business record and admissible as such. See Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 (CA) , 548; Utting v Luhatala, Court of Appeal (NSW), unreported, 9 November 1983; 6 Petty Sessions Review, 2857. Although it was rejected by Cole J under s 14B of that Act, it was certainly tendered. In my view it was wrongly rejected. It was, in law, admissible. It is important to remember that it is the statements in documents which become admissible under the Act, not the documents themselves. See Re MarraDevelopments [1979] 2 NSWLR 193 (CA) , 202. The acceptance of the statement does not prove that the statement is true, simply that it was made. See R v Hawes (1994) 35 NSWLR 294 (CCA) 299f. But it can then be used to test a relevant witness" credit. However as Meagher JA and Powell JA have each pointed out, this matters not. In no way could the P 4 report, and such additional facts as it contained, authorise this Court to set aside the findings as to the happening of the second 2 UNREPORTED JUDGMENTS accident which Cole J clearly based upon his acceptance of the evidence of the driver of the vehicle involved in that accident, (Mr Whitehead) and the two independent witnesses, (Mr and Mrs Ryan). The repeated authority of the High Court of Australia (Brunskill & Anor v Sovereign Marine and General Insurance Co Limited & Ors (1985) 59 ALJR 842 (HC) , 844; Abalos v Australian Postal Commission (1990) 171 CLR 167 , 178; Devries & Anor v Australian National Railways Commission & Anor. (1993) 177 CLR 472 , 478f) and of this Court (Lendlease Development Pty Limited v Zemlicka & Ors (1985) 3 NSWLR 207 (CA) , 210; Galea v Galea (1990) 19 NSWLR 263 (CA) , 266; Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA) , 299; Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (CA) , 313) forbid disturbance of such findings. Upon the findings of fact made by Cole J it was certainly open to his Honour to conclude, in the second accident, that negligence was not established. Cf Stewart v Carnell (1984) 2 MVR 147 (NSWCA); Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 , 372 (NSWCA). No error is shown which this Court may disturb. It follows that no damages may be recovered as a consequence of that accident. The damages recovered for the first accident, although small, are not appealably so. There was clearly an evidentiary foundation for Cole J's determination which Powell JA has set out. This Court may not disturb it. Not for a minute did I ever consider making any order for costs against counsel for the appellant. His written submissions, although received late, were exceptionally detailed and characteristically thorough. This is no more than would be expected of a senior member of the Bar appearing in the interests of a young person, with a very difficult appeal. An explanation and apology were offered for the late arrival of the submissions. Unhesitatingly, I would accept both. The appeal should be dismissed with costs. Meagher JA. This is an appeal by a disappointed plaintiff against a verdict awarded him by Cole J in the sum of $5,200. The proceedings before his Honour consisted of two cases brought by the plaintiff and heard together. The comparative exiguity of the verdict is due to the fact that in the first action liability was admitted but the plaintiff suffered almost no injury, whereas in the second action he could prove heavy damages but no liability in the defendant. The plaintiff was born on 24 June 1974. The first action concerns an incident which took place when he was 4 1/2 years old on 20 February 1979. He was standing at a bus stop with his mother. As the bus approached he bent down to get his school pass and was struck on the head by the bus. He sued thedriver McPhee in negligence. Liability was admitted. Out-of-pockets were agreed at $200.00. This episode seems to have been of minor importance. He was taken to Canterbury Hospital, and shortly afterwards discharged. He missed one week's schooling. Despite an unusually vigorous attempt by his solicitors to prove that the direct consequences flowed from this accident, the facts demonstrated they did not. Dr Mellick's tests seem to show no brain damage; a psychologist, Miss Tesoriero, demonstrated that there had been no emotional disturbance; Canterbury Hospital showed that no hearing loss had been involved; and Dr Jack, an ophthalmologist, said that no visual deficiency was attributable to the accident. All this is consistent with the fact that no medical advice was sought during 1979, 1980 or 1981. There was thus not only evidence which would have URJ DIMITRY v McPHEE (Meagher JA) 3 enabled his Honour to find that virtually no damage was suffered by the plaintiff as a result of the first accident, but also such a preponderance of evidence in the direction that any other finding would be perverse. The second accident occurred on 9 October 1983, when the plaintiff was 9 years old. He left his grandparents" home near Illawarra Road Marrickville to buy an ice cream. That involved two crossings of Illawarra Road, one enroute to the shop, and one back against. Illawarra Road is a straight road approximately thirty feet wide with a double yellow line down its centre. He was knocked down by a tow-truck driven by a Mr Whitehead. On his version the plaintiff looked right and left, saw no traffic on the road, and then went 'straight across' the road. His Honour paid careful attention to his evidence and found he was unable to believe it. Perhaps unusually, there was not only the evidence of Mr Whitehead to the contrary, but also the evidence of two disinterested witnesses, a Mr and Mrs. Ryan, who were travelling in the car behind him and who gave a version of the accident which entirely supported him. Mr Whitehead's evidence was that he was driving along Illawarra Road, in a southerly direction towards Earlwood. He had turned onto IllawarraRoad about a kilometre back and the road was straight. There was heavy traffic in the direction he was travelling. Accordingly he was in first gear travelling at 10 kilometres per hour or less. There was light traffic in the opposite direction. He first saw the plaintiff, then a boy of nine, when he was at the front offside corner of his truck and only a foot or so away. He immediately braked but the vehicle rocked forward striking the plaintiff. The plaintiff was knocked forward 6 to 8 feet within which distance Mr Whitehead stopped his vehicle. The clear explanation why Mr Whitehead did not see the plaintiff prior to the time he was directly in front of the offside corner of the truck is that the plaintiff ran across the road at an angle of some 45 degrees thus coming through the traffic travelling north and ran diagonally across in front of Mr Whitehead's vehicle. That that is so is confirmed by Mr and Mrs Ryan. Mr Ryan was slowly driving his vehicle, being a taxi, in heavy traffic, directly behind the tow truck which he had been following for about half a kilometre. He only saw the child running across the road after his wife, who was in the front passenger seat, called out a warning to him. He immediately braked and did not hit the tow truck ahead of him. When he glanced at the boy he said he was at about an angle of 45 degrees from his direction of travel. The only reason Mrs Ryan saw the plaintiff was that she was sitting turned towards her husband in the driver's seat and facing him. She saw the plaintiff through the rear side window. Her evidence was that the plaintiff ran diagonally in the direction of the tow truck. She called out to her husband and momentarily stopped looking at the running child. When she looked again he was a few feet from the driver's side of the tow truck but heading towards its front. His Honour accepted the evidence of Mr Whitehead and Mr and Mrs. Ryan. Both Mr Whitehead and Mr Ryan were keeping a proper lookout ahead but did not see the child running at an angle across the road into a heavy stream of traffic. This stream of traffic was moving very slowly. Mr Whitehead applied his brakes the moment he saw the child, because there is nothing else hecould so. If a person chooses to run diagonally across heavy traffic it is not surprising if he does not enjoy a smooth passage. Mr Hall Q.C., because of his Honour's finding that the accident occurred in the manner in which Mr Whitehead said it did, a finding obviously based on credibility, could hardly urge the Court to make a finding that Mr Whitehead was 4 UNREPORTED JUDGMENTS negligent. However, he did argue an evidentiary question. He tendered a traffic Accident Report (known as a P 4) regarding the second accident. Cole J refused to admit it. In my view it was clearly admissible under s 14CE of the Evidence Act. If it had been admitted it would have been admitted it would have been partly favourable to the plaintiff, insofar as it shows Mr Whitehead travelling at a speed of 30 kph rather than the 10 kph he deposed to; and partly unfavourable to the plaintiff, insofar as it shows that the plaintiff 'ran' into Mr Whitehead's truck, not walking 'straight across' an empty street, as the plaintiff said. However, in my view, the exclusion of the plaintiffs evidence does not really matter. In the first place, its exclusion may not have been wrongful. Mr Hall Q.C. tendered it under s 14B of the Evidence Act, not under s 14CE; and it was not admissible under s 14B if its maker was not called — and its maker was not called. More substantially, as Mr Hall Q.C. very fairly conceded, if admitted it would not in all probability have made any difference to his Honour's findings. Cole J was obviously very impressed by the evidence of Mr Whitehead, and it is hardly likely that his favourable impression would have been dissipated solely because in one particular Mr Whitehead's evidence was inconsistent with some hearsay assertion. The final submission of the appellant is a little complicated. The starting point is to realize that by the time of the trial the appellant had had a fairly turbulent emotional history. He seemed to have gone through a variety of states of rebellion, depression, gloom and unhappiness, although never suffering any recognized psychiatric disturbance. To a certain extent that is, of course, the lot of all adolescents. But in the present case that factor was aggravated by thefact that the plaintiffs family were of foreign origin, exiles in an alien land, who felt emotionally threatened. In this case this feeling of cultural alienation was deeper than is usually the case, because they were devout Egyptian Copts who wished to keep unbelievers at bay. They thus treated the plaintiff overprotectively, perhaps grossly overprotectively. their attitude in this regard being especially triggered by each accident. To some considerable extent the plaintiff, who was not stupid, took advantage of his parents" attitude by indulging in displays of naughtiness, which he could do with impunity; and each display of bad behaviour gave rise to a new wave of parental protection. In these circumstances Mr Hall Q.C. sought to treat the plaintiff's emotional problems as a head of damages, by analogy to such cases as Nader v Urban Transport Authority of New South Wales (1985) 2 NSWLR 501. In other words, he argued that whilst the bus driver's negligence did not directly cause the plaintiff's emotional problems, it did so indirectly, by igniting the overprotectiveness which did cause the problems. There are, I think, two answers to this: first, in cases like Nader's case, the plaintiff suffered from a recognized psychiatric illness, whereas in the instant case the plaintiff suffered from no more than emotional disturbance; and secondly, and more importantly, his Honour's careful analysis of the evidence (which we are bound to accept because it was based on findings of credibility) led him to conclude that the first accident's contribution to the parental attitude of overprotectiveness was "de minimis'. In my view, therefore, the appeal should be dismissed with costs. I had toyed with the idea of ordering that the costs be paid by the plaintiff's counsel personally in view of the fact that the plaintiff's submissions in this rather complicated case did not arrive until the case had almost begun. However, that course may be reserved until the next transgression. Powell JA. In their Written Submissions, counsel for the Appellant wrote: URJ DIMITRY v McPHEE (Powell JA) 5 The essential issues raised in the Appeal are whether the Trial Judge was in error when he found that (a) (b) (c) the Plaintiff did not sustain any brain damage, or personality disturbance as a result of the First Accident, and that the Defendants were not guilty of negligence in relation to the Second Accident, and whether the assessment of damages in relation to each accident was inadequate (sic). In support of their submission that Cole J fell into error in not finding that 'the Defendants' were guilty of negligence in relation to the Second Accident, counsel — as I understand it — pointed to two matters: (d) his refusal to permit Mr Whitehead to be shown, or to be cross-examined on the terms of, the Traffic Accident Report (Form P 4);(e) his rejection of the tender — whether pursuant to the provisions of s 14B, or of Pt 2C, of the Evidence Act — of the Traffic Accident Report; the contents of the Traffic Accident Report, so it was submitted, being relevant (inter alia) to fix the point of impact, and the speed of Mr Whitehead's vehicle, as to which, so it seems to have been said, Mr Whitehead had earlier given inconsistent evidence. 1. Brain Damage or Personality Disturbance? In their Written Submissions in relation to this issue, counsel for the Appellant wrote (inter alia): — ... the finding that as a consequence of the conduct of his parents and legal advisers the Plaintiffs emotional functioning was adversely affected was a sufficient finding to enable the Plaintiff to recover damages in respect of his emotional disturbance on the basis that the accident was a cause of such disturbance ((1985) 2 NSWLR 501 at 531E, 537 A-E Nader v Urban Transit Authority) see also Luntz (3rd) Para 2.2.3 where Nader is cited as authority for the proposition that the Defendant must not only take a Plaintiff as it finds him, but in the family setting in which he lives. Let it be accepted that, in relation to those who might be described as primary victims of an act of negligence, the principle that a defendant must take a plaintiff as he finds him dictates that, so long as, in the particular case, it is reasonably foreseeable that a plaintiff might suffer injury by some form of 'nervous shock', the defendant cannot escape liability for any psychiatric, or emotional, disturbance causally relatedto the negligence upon the ground that the plaintiff had an 'eggshell personality' (see, for example, Nader v Urban Transit Authority!; Page v Smith2), that principle is of no assistance to the Appellant since Cole J concluded (AB 587):: In reality there was no brain damage, eyesight deficiency is unrelated to the accident, there is no established hearing loss and certainly none attributable to the accident, there was no emotional disturbance and his intelligence was not reduced. 2. The Finding of No Negligence — The Traffic Accident Report 1. (1985) 2 NSWLR 501 2. [1995] 2 AER 736 6 UNREPORTED JUDGMENTS Although Cole J's finding that the accident occurred, not in the way described by the Appellant (AB 17), but in the way described by Mr Whitehead and Mr and Mrs. Ryan — a finding clearly based, at least in part, upon the credibility of the various witnesses — renders his Honour's finding that there was no negligence on the part of Mr Whitehead virtually impregnable (Devries v Australian National Railways Commission?) it is as well to deal with the matters relating to the Traffic Accident Report to which attention has been drawn. At the commencement of the cross-examination of Mr Whitehead (AB 756) by Mr G.B. Hall Q.C., who then appeared, as he did on the hearing of the Appeal, for the Appellant, the following interchange occurred: HALL: Q. When did you first make the statement? A. Only just recently, yesterday I believe because they had trouble getting in touch with me. Q. Was that the first time you were asked to recollect this accident? I will ask you that question another way. How long before that had you been asked to cast your mind back to this accident? Prior to that, not at all. 'You would have had no cause to recall the accident, is that correct, since it happened? That's correct. You would have been interviewed by a police officer at the time of the accident, would you not? Yes. . (Counsel approached) I want to show you part of a document. OBJECTION HIS HONOUR: Is this the witness" document? HALL: I have shown him part of a document. HIS HONOUR: Is that the witness" document? HALL: It is not the witness" document. HIS HONOUR: Why should you be entitled to show it? HALL: J am entitled to show the document to him and I am entitled to ask him whether he adheres to some evidence he has previously given. HIS HONOUR: I don't understand that. You can cross examine a witness on his own document. You can't cross examine — HALL: You can. I aim to turn up and give your Honour authority. You can show a witness not his own document (sic) and having shown him that document ask him whether he adheres to his earlier evidence. HIS HONOUR: It is not my understanding of what Mr Justice Glass said and it is not my understanding of what Mr Justice Franki ruled but you may be right. HALL: My authority predates both those documents. I have in mind an article in the ALJ by the Editor in Chief, I think — HIS HONOUR: Mr Justice Young has been the editor for the last — the matter is considered in Tradestock and it is dealt with by Mr Justice Clarke. HALL: So my friend knows precisely what I pointed to him I will identify what I showed him. What the witness was shown was line 24 in a P 4. HIS HONOUR: What is a P 4? HALL: It is a police traffic accident report. PETTY: I object to this. HIS HONOUR: If it is a report by some policeman you will have to call the policeman, don't you? HALL: No. As a matter of fact, one doesn't. HIS HONOUR: How else do you get it in. C> OP o> 3. (1993) 177 CLR 472 URJ DIMITRY v McPHEE (Powell JA) 7 HALL: As a business record. HIS HONOUR: Over objection? HALL: Yes. Can I put it this way? I have been present in a number of cases where it has been argued and it is my understanding of the practice certainly in the Common Law Division to admit it as a business record. HIS HONOUR: Over objection? HALL: Yes., HIS HONOUR: You will need to persuade me about that. Presently objection has been taken to you showing the witness a document which you say is not his document. I would uphold that objection unless I am persuaded by authority. HALL: I am not in a position to put that authority to you, although I will indicate the authority to you in the course of the day so your Honour won't think I have done something -HIS HONOUR: I don't want some old authority. I want you to tell me the result that your researches produced. HALL: I don't want your Honour to think I did it — HIS HONOUR: I am sure you think you are entitled but I am not persuaded you are.' (My emphasis, in each case) When, at the conclusion of Mr Whitehead's cross-examination, (AB 82) Mr Hall sought to tender the Traffic Accident Report, it was rejected — the Transcript does not record the basis upon which the tender was rejected. With great respect to Cole J, it seems to me that he was in error in not permitting Mr Hall to cross-examine Mr Whitehead in the manner which he foreshadowed. On the contrary, as it seems to me, the law, in this respect, is as Mr Hall had contended for, even if, contrary to the fact, Mr Whitehead had not been a party to, but a mere witness on the hearing of, the proceedings. As I understand it, the law in this regard is as follows: — 1. any witness may be cross-examined as to the contents of a document written, or signed, by him so long as the contents of the document are relevant, or go to the question of the witness" credit; 2. aparty-witness may, in addition, be cross-examined as to the contents of a document if its contents are within his ownpersonal knowledge whether he be the author of it or not (Alchin v Commissioner for Railways*); 3. while a witness who is not a party cannot be cross-examined as to the contents of a document of which he is not the author, the cross-examiner may put such a document in the witness" hands, and ask him if, having read it to himself, he adheres to his previous testimony (see, Birchall v Bulloughs; R v Orton®; Alister v The Queen'). So too, although the grounds upon which his Honour rejected the tender of the Traffic Accident Report — or, more strictly, the relevant 'statements' contained in it (see Re Marra Developments Limited and the Companies Act®) — are not clearly revealed by the transcript, it seems to me that Cole J was in error in rejecting the tender. Let it be assumed that, in the absence of Constable Pavlich — who had been the investigating police officer, and who had prepared the Traffic Accident Report — and there being no explanation for his absence, it was open to Cole J to reject 4. (1935) 35 SR 498, 508 per Jordan CJ 5. [1896] 1 QB 325, 326 6. [1922] VLR 469 7. (1984) 154 CLR 402, 442-3 8. [1979] 2 NSWLR 193, 198 8 UNREPORTED JUDGMENTS the tender of the Traffic Accident Report as not being a document falling within the provisions of s 14B of the Evidence Act 1898, it is to be observed that, in answer to his Honour's question 'How else do you get it in?' Mr Hall had replied — in my view, correctly — 'As a business record.' 5 Whether or not it is correct to say that a policeman's notebook is not, and does not form part of, 'a record purporting to be a continuous record' for the purposes of s 14B of the Evidence Act 1898 (as to which see Newton v Pieper?) it seems to me that, just as a sheet from a police station occurrence pad is to be regarded as a business record for the purposes of s 14CE of the Evidence Act 1898 (Utting 10 v Luhtala!®) so also should a Traffic Accident Report be so regarded, it following that, to the extent to which it contained any relevant statement, the Traffic Accident Report should have been admitted into evidence. It does not, however, follow that, by reason of the rejection of the tender, the Appellant would be entitled to succeed on the Appeal and have a new trial — that 15 would be so only if it appeared that a substantial wrong, or miscarriage, had thereby been occasioned (Supreme Court Rules 1970 Pt 51 r 16(1)). am far from persuaded that this was the case. The Appellant's case, in this respect (AB 17-18, 25-28) — which case, as I have earlier noted, was rejected by Cole J — was that, having left an ice-cream shop, which was near the intersection of Illawarra and 20 Petersham Roads, he walked to the kerb and, having looked both ways, and having seen no traffic coming from either direction, commenced to walk across Illawarra Road looking each way as he walked — having reached a point about three quarters of the way across the road, he was struck by Mr Whitehead's vehicle, which vehicle he was led to believe had come out of Petersham Road 25 behind him. Given that this was the Appellant's case, the Traffic Accident Report would have provided him with small comfort, even if it had been admitted into evidence. On the contrary the statement 'victim ran from footpath on west footpath into veh 1 (sic)' contained in it, together with the point of impact depicted in the 'locality sketch' appearing in it when that 'locality 30 sketch' was compared with the 'Plaintiff's diagram of Scene of Accident' ((Exhibit '7 AB 313) would have provided strong support for the version of the accident which Cole J ultimately accepted. 3. Inadequacy of Damages. Given Cole J's findings of fact in relation to the 'injuries' suffered by 35 the Appellant in, and as a result of, the first accident, I can find no ground for interfering with the award of damages which his Honour made. In the result, therefore, I agree that the Appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: G B Hall QC Solicitors for the appellant: David Maxwell Roberts ad Counsel for the respondent: H di Suvero Solicitors for the respondent: Solicitor for Government Insurance Office of New South Wales 50 9. [1968] 1 NSWR 42 10. Court of Appeal 9th November 1983 noted (1983) 6 Petty Sessions Review 2857