STATE OF NEW SOUTH WALES v JONES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, SHELLER and BEAZLEY JJA 21 May 1996, 6 June 1996 [1996] NSWCA 490 PERSONAL INJURY — student injured while at school — time of injury — whether Department of Education owed duty of care — admissibility of written statement — s14B(3) Evidence Act 1898 — discretion of trial judge in accepting evidence — Devries v Australian National Railways Commission (1993) 177 CLR 472 On 8 September 1988 the respondent, a student at Oak Flats High School, was injured when another student, Aaron Baker, flicked a pen which struck him in the right eye. The incident occurred in the early afternoon while the students were in the main assembly hall of the school. The respondent sued the appellant pursuant to the Crown Proceedings Act 1988. On 15 October 1992, Judge Madgwick QC gave judgment in the respondent's favour. On the critical issue of time of injury, his Honour decided that the incident had occurred during formal teaching hours and not during the school lunch break. His Honour found that the State had a duty of care to the plaintiff at the time of the accident. Had the injury occurred during a recognised break his Honour would have found for the appellant, because he was of the view that appropriate playground supervision would not have been likely to avoid the accident. The appellant appealed against this decision on two bases: firstly, that his Honour erred in refusing to admit into evidence a written statement made by Mr Baker pursuant to s14B(3) of the Evidence Act 1898, to the effect that the incident had occurred at 12.20 during the lunch break, despite the fact the witness was called; and secondly, that in describing the balance of the evidence his Honour misdirected himself by accepting the evidence of three students that the incident had occurred after the lunch break had ended, so that he came to a conclusion different from that to which he should have. HELD 1. On appeal it was conceded that admission of Mr Baker's written document could only be supported under s14B(3) of the former Evidence Act. The application of this section depended upon whether Mr Baker was 'interested' in the sense there referred to within s14B(3). It was unnecessary to resolve the question whether Mr Baker was 'interested' within that subsection as the outcome would have been the same if the document had been admitted and, accordingly, its rejection did not occasion any substantial wrong or miscarriage. (per Mahoney P) The respondent was "interested" within the meaning of the subsection, so the statement was rightly rejected by the trial judge. Even if the statement should have been admitted into evidence, the result of the proceeding would have been the same. Feltafield Pty Ltd v Heidelberg Graphic Equipment (Federal Court of Australia, 24 March 1995, unreported per Beazley J) 2. Although the first sentence of the document suggests the accident occurred at 12.20 pm, which would place the accident during the lunch break according to the appellant's evidence, this was inconsistent with the rest of the document and Mr Baker's oral evidence which agreed with the evidence of the respondent and Miss Coates, either that the bell had rung and they had attended the hall or that there would have been no reason for them to go there until the bell rang. (per Mahoney P) It may have been argued that, had the document been admitted into evidence, the trial judge may have come to a different conclusion as to the credibility of some or all of the witnesses. 2 UNREPORTED JUDGMENTS 3. His Honour was entitled to accept the evidence of the three pupils that the accident occurred after the school bell sounded in preference to the evidence of Mrs Wright and one of the clerical assistants, Mrs Paine. His Honour had the advantage of seeing, hearing, and comparing the force of their position to judge evidence with the other witnesses and thus was in a far better position where the truth lay as between the conflicting versions. Devries v Australian National Railways Commission (1993) 177 CLR 472 Appeal dismissed with costs. Mahoney P Dr Morrison SC for the appellant, State of New South Wales, has confined his submissions to two: that the trial judge effed in refusing to admit into a written document signed by a witness at the trial, Aaron Baker, and that, upon the evidence, his Honour should have come to a conclusion different from that to which he came. The facts are detailed in the judgment of Sheller JA. I shall not repeat them. It is sufficient to record that the trial judge concluded that the State had a duty of care to the plaintiff at the time of the accident because he found that the accident happened after the end of the lunch period; had he found that the accident had occurred during the lunch period, he would have found for the defendant State of New South Wales. For this reason, the admissibility of the document in question in the appeal was of particular importance. 1. THE ADMISSIBILITY OF AARON BAKER'S DOCUMENT: It was conceded before this Court that the admission of the document could be supported for the appellant only under s14B of the former Evidence Act. Reliance upon other provisions of that Act was abandoned. Mr King, for the plaintiff-respondent, conceded that all of the conditions for admissibility under s14B were established: the application of the section depended upon whether, within s14B(3) Mr Baker was "interested" in the sense there referred to. Dr Morrison and Mr King referred the Court to the authorities in which s14B(3) and its equivalent have been considered. To these should be added the judgment of Beazley J in Feltafield Pty Ltd v Heidelberg Graphic Equipment (Federal Court of Australia, 24 March 1995, unreported). The various aspects of the subsection have been referred to. However, I do not think it necessary to pursue the detailed reasoning involved in the construction of the subsection. I am inclined to the conclusion that Mr Baker was "interested" within the subsection and that, by virtue of its operation, the statement was rightly rejected by the trial judge. But, even if the statement should have been admitted into evidence, the result of the proceeding would, in my opinion, be the same: the verdict for the plaintiff would stand. 2. THE EFFECT OF THE EVIDENCE: The trial judge had to determine whether the accident happened before or after the end of the lunch period. The evidence of the plaintiffs relevant witnesses, the plaintiff himself and Miss Coates, was that the accident occurred after the bell had sounded to mark the end of the lunch period and while the children were assembled in or near the school hall. Mr Baker, who was called for the defendant, gave evidence to the same effect. The judge accepted each of these as witnesses who were honest and essentially credible. The witnesses called for the defendant did not contradict that the accident occurred after the bell, except to the extent to which I shall refer. Their evidence was that the lunch period was from about 12.10 to about 12.50 pm or thereabouts. And the evidence of Mrs Paine was that the plaintiff, in his injured state, had URJ STATE OF NEW SOUTH WALES v JONES (Mahoney P) 3 come to her for care at about 12.30 pm. Accordingly, the inference was, the accident happened during the lunch period. His Honour did not conclude that any of the witnesses was other than honest. His problem then was to determine, as between these apparently conflicting versions, where the truth lay. He preferred the witnesses for the plaintiff. Dr Morrison's submissions were to the effect that, as on a rehearing: Supreme Court Act, s75A; this Court should come to a different conclusion. He was, in this, faced with the fact that the judge had obviously been influenced, in coming to his conclusion, by what he saw of the witnesses and to that extent was in a position of advantage vis-a-vis this Court: Devries v Australian National Railways Commission (1993) 177 CLR 472. But he submitted that his Honour had not property used his advantage. To support this, he contended, inter alia, that his Honour had inaccurately stated the evidence and that he had failed to give proper force to the fact that Mrs Paine, in her evidence, had relied upon a contemporary written document. Dr Morrison submitted that there had been no contest but that the luncheon period had been the period to which I have referred; his submission suggested that that period had not concluded by approximately 12.30 pm. The teachers who gave evidence had spoken generally to that effect and had not been seriously cross-examined. But the witnesses for the plaintiff, in their evidence, had been asked about the time of the lunch period and had expressed doubt as to when it was. It would not have been wrong for the judge to conclude that it had been completed by 12.30 pm; that is a possibility which was, I think, open, although the weight of the evidence was as Dr Morrison contended. His Honour was faced with the record made at or about the time in question by Mrs Paine. She recorded having dealt with the plaintiff at 12.30pm. If that was so and if the lunch period was to 12.50 pm, then the accident occurred during the lunch period as Dr Morrison contended. But his Honour concluded that, notwithstanding that she was honest as a witness, Mrs Paine had probably written 12.30 as the time of her treatment by error: she had, he suggested, written it only subsequently and had erred as to the time. For myself, I find this explanation of her evidence not easy to accept. But his Honour had the advantage of seeing her as a witness and comparing the force of her evidence with that of the other witnesses. The conflict of evidence required, in a practical sense, that some witness or witnesses be rejected. The possibility of a mistake by Mrs Paine was put to her in cross-examination. It is a possibility which, whatever be its likelihood, cannot be logically excluded as an explanation of what occurred. In these circumstances it was, in my opinion, within the range of the judgment allowed to a trial judge to come to the conclusion he did as to the record that she kept. Upon this basis, his Honour's acceptance of the plaintiff s witnesses in this regard was not inconsistent with a compelling written document in the sense referred to in Voulis v Kozary (1975) 180 CLR 177. What he did was, I think, something which was open to him to do and which, having regard to his advantage at the trial, this Court should not put aside. In this context, I come to consider the effect of the document signed by Mr Baker. I shall assume for this purpose that it is part of the evidence. On that basis, I would not come to a conclusion different from that reached by the trial judge. The document, in its terms, would evidence that the accident occurred at about 12.20 or 12.30 pm. But according to the terms of it, it occurred after the bell marking the end of the lunch period had sounded and after the children had come together at or near the hall for supervision by their respective teachers. The 4 UNREPORTED JUDGMENTS document, according to its terms, is inconsistent with the lunch period having been that contended for by Dr Morrison; if the accident occurred when the statement said it occurred, the luncheon period must have been over by that time. That means that the lunch period ended by about 12.20-12.30 pm. Accordingly, viewing the evidence as a whole, including the document, I would come to the conclusion that the accident happened after the end of the lunch period. In considering the matter on this basis, I have considered whether it is proper for this Court to form its own conclusion as on a rehearing or whether the matter should be returned to the District Court for a retrial. It may, for example, be argued that, had the document signed by Mr Baker been admitted into evidence, the trial judge may have come to a different conclusion as to the credibility of some or all of the witnesses. But I do not think that that is a likelihood such as should prevent this Court coming to its own conclusion. All of the witnesses were accepted as witnesses of truth and it is has not been suggested that, on whatever view, a different conclusion should be come to in respect of them. The contest has been as to the conclusion to be drawn, upon the basis that the witnesses were as the judge found them to be in this regard. Accordingly, it is in my opinion proper that this Court form its own conclusions upon the matter. Upon the basis of such reasoning I have come to the conclusion that, whatever be the position in relation to the impugned document, the judgment of the learned judge was correct. I agree with the orders proposed by Sheller JA. Sheller JA INTRODUCTION The State of New South Wales appeals from the decision of Judge Madgwick QC in the District Court at Wollongong given on 15 October 1992 when his Honour gave judgment for the plaintiff respondent, Paul Allan Jones, in the sum of $89,461. The respondent was injured in the early afternoon on 8 September 1988 in the main assembly hall of Oak Flats High School, Oak Flats where he was at the time a student. The Department of Education administered the school. The respondent sued the appellant pursuant to the Crown Proceedings Act 1988. The respondent was injured when another student, Aaron Baker, while playing with a pen flicked it out of his fingers striking the respondent in the right eye. The respondent was at the time aged fifteen. THE TIME OF THE ACCIDENT A critical determinant leading to his Honour's conclusion in favour of the respondent on liability was his finding that the injury occurred during school hours when the teacher, Mrs Wright, assigned to supervise the group of students, of which the respondent and Mr Baker were members, for sport, should have structured the activities so that Mr Baker would not have been playing with a pen in a way that risked injury to another student. His Honour was of the view that, had the injury occurred during a recognised school break, appropriate playground situation supervision would not have been likely to have avoided the accident. The appellant has appealed against his Honour's finding that the accident occurred during formal teaching hours and not during a recognised school break. The evidence of the principal, of Mrs Wright and of the respondent was that the school lunch break took place on the day in question between about 12.10 and 12.50 pm. His Honour found that the accident occurred after the bell for the resumption of official school activities at the end of this break. REJECTION OF EVIDENCE URJ STATE OF NEW SOUTH WALES v JONES (Sheller JA) 5 The first part of the appellant's attack was directed against Judge Madgwick's rejection of the tender of a document in the handwriting of Mr Baker. The substance of that statement, which became MFI 2, was as follows: "It was 12.20 on Thursday 8/9/88 it was just before Sport at the hall when I was playing with a pen and then it flicked out of my hand. Then Paul turned around and it hit him in the eye. We were all waiting for Mrs Write [sic] to come for sport. The people with us was Meline Tanya." The principal was recalled to give evidence that the day after the accident Mr Baker wrote the document in front of him and signed it in his presence. After this evidence Counsel for the appellant tendered the document. The transcript does not reveal on what basis. The tender was rejected and the defendant called Mr Baker to give evidence. After Mr Baker had recognised the document and identified his signature, Counsel for the appellant tendered it again in reliance on sl4CE of the Evidence Act 1898 (the Act). The Judge raised the question of whether Mr Baker was a "qualified person" within the meaning of subs(6)(a) and as defined by s14CD(1). Counsel said that he did not press the tender on that basis and it was rejected. Although the appellant originally appealed against the rejection of the tender on this basis, that ground of appeal is not now pressed. After Mr Baker had completed his evidence Counsel for the appellant re- tendered the statement under s14B of the Act. Apparently that tender was also rejected, the appellant says because his Honour was of the view that the statement contained in the document was made by "a person interested at a time when Proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish."; see s14B(3). The appellant said that his Honour had in mind "proceedings" of the nature of possible disciplinary action pursuant to the school's disciplinary code. His Honour's reasons for rejecting the tender under s14B were not recorded in the transcript. Mr Morrison SC, who appeared for the appellant, presented an interesting argument in support of the proposition that at the time the statement was made, the day after the accident occurred, Mr Baker was not a person interested and there were no proceedings pending or anticipated. For reasons which will shortly become apparent, it is unnecessary for me to resolve this question. The various authorities, some of which cannot easily be reconciled, have been discussed by Beazley JA, when sitting as a Judge of the Federal Court, in Feltafield Pty Ltd v Heidelberg Graphic Equipment (unreported) 24 March 1995. THE RESPONDENT'S EVIDENCE The second part of the appellant's challenge was directed to his Honour's acceptance of the evidence of three pupils, the respondent, Mr Baker and Miss Coates, that the incident occurred after the school bell sounded, that is to say about 12.50 pm or thereafter, in preference to the evidence of Mrs Wright and one of the school's clerical assistants, Mrs Paine. Judge Madgwick said the evidence of the three pupils was all one way. The respondent was an impressive and seemingly straightforward witness who gave a telling account that he would not have been in the particular area near the school's assembly hall, where the accident occurred, during his lunch hour because he was keen on handball that was played elsewhere. His Honour did not think that it could be said that Mr Baker was in the respondent's camp. He was quite clear that the injury occurred after the bell had sounded and after, in the ordinary course, Mrs Wright would have been present to supervise the group and to structure their activities by firstly conducting a roll call and then leading them to the venue of whatever their activity was in fact to be on that afternoon. The clear trend of the evidence of the 6 UNREPORTED JUDGMENTS third pupil, Miss Coates, was again strongly in favour of the respondent. She, too, saw no very great intrinsic attraction in being in that area of the school grounds at all. The Judge said: "So the fact that the three of them were there, the fact that the three of them say that the incident occurred, after the school bell sounded and the fact that the defendant tendered one of them, and the fact that I received no impression at all that any of them was telling lies or tailoring his or her evidence to assist the plainfiff's case, is a powerful position." Mr Morrison took us to the respondent's evidence in chief when the Judge asked him "What were you going to do the day you were hurt? Do you know or not?" and he answered "No, we assumed that we were going to be in the hall because the hall was open, every [sic] was open and unlocked so we just assumed it was in there." This was to be contrasted with the respondent's somewhat reluctant concession in cross examination (as it appears in the transcript) that he was under instructions that he was not to go into the assembly hall and, later, that he was out of bounds in being there. The appellant submitted that the respondent was not being truthful about this and that his Honour misdirected himself when he said the respondent was an impressive and seemingly straightforward witness. Similarly it was said his Honour misdirected himself when he said that he did not think it could be said that Mr Baker was in the respondent's camp. Apparently Mr Baker had been brought to Court by the respondent and had awaited outside but the respondent had not called him. Some inconsistency was suggested between Mr Baker's evidence and the respondent's evidence about what they were doing. Finally Mr Morrison pointed out that Miss Coates gave no evidence that she had heard the school bell sound before the accident. Miss Coates had said that after lunch she got changed for sport and then headed down to the hall where they all met. Mrs Wright did not arrive until about ten to fifteen minutes after the accident. She said her instructions were to go down to the hall when the lunchtime bell denoting the end of lunch had sounded. The Judge asked her had the bell sounded before she got changed and she said she did not remember. She was then asked by Counsel for the appellant: "The bell denoting the end of lunch had not sounded when you were in the assembly hall, had it?" to which she replied "I don't know. I don't remember. I can't see why I would have been down there like during lunch time. I had nothing else to do, like if we were down." She said she had been in the hall for about ten minutes when the accident occurred. Ido not think any of these alleged misdirections are made out. I have read the transcript of the respondent's evidence. There is nothing in it which contradicts his Honour's conclusion that he was an impressive and seemingly straightforward witness. His Honour who saw and heard him was in a far better position to judge that than this Court. Similarly, it was quite open to his Honour, having heard Mr Baker's evidence and the rest of the evidence, to conclude that he could not be said to be in the respondent's camp. His Honour said, quite rightly, that Mr Baker was the agent of the respondent's injury and might be expected a priori to tend to a version which would minimise his own sense of personal responsibility to the unfortunately serious injury that the respondent sustained. Miss Coates' evidence and in particular those parts which I have quoted support the conclusion that the clear trend of her evidence was strongly in favour of the respondent and that she saw no very great intrinsic attraction in being in the area of the hall. The three pupils either expressly or by fair inference URJ STATE OF NEW SOUTH WALES v JONES (Sheller JA) 7 told his Honour that the incident occurred after the school bell sounded. I would reject the suggestion of misdirection on the grounds advanced. APPELLANT'S EVIDENCE Judge Madgwick said that there was some very powerful evidence for the appellant. Mrs Wright conceded that there were occasions when she might have been late but her recollection was not on this occasion. Mrs Paine, a careful woman, recorded in a book kept for the purpose and known as the clinic book that the respondent went home with an eye injury on 8 September 1988 and she wrote in the time 12.30. She said it was her ordinary practice when a pupil reported in with some injury, if the injury was seemingly not very severe, to look at her watch and note the time and see to their needs. It seemed likely to the trial Judge that she did not immediately write down 12.30, but wrote it at some later point in time. She said that the respondent was in the sick bay for some considerable time and she remembered having difficulty in contacting his relatives. Eventually his father did come and the respondent was whisked away to see a series of doctors on that very day. His Honour said: "Tt may be that there is very little difference in reality between the evidence of the plaintiff and the other two pupils and Mrs Paine, because it may be that the times of the bells, at the time of the bell for the resumption of lesson time and sport was a lot closer to 12.30 than Mr Ross the headmaster and Mrs Wright the teacher recall. But if it is not the case then I think the overall I weight of the evidence is sufficient to prove that the accident in fact occurred after the bell for the resumption of official school activities, notwithstanding that because of Mrs Paine's evidence, considerable doubt must exist about it." Mr Morrison submitted that the proposition that "the time of the bell for the resumption of lesson time and sport was a lot closer to 12.30 than Mr Ross the headmaster and Mrs Wright the teacher recall" was not one put to either of them in cross examination and accordingly was not an appropriate way for his Honour to explain the difference between their evidence and the evidence of the three students. However, whether or not this proposition was justified, the next sentence demonstrates that it was not the basis for his Honour's findings. He concluded that even if this was "not the case" the overall weight of the evidence was sufficient to prove that the accident in fact occurred after the bell. REJECTION OF EVIDENCE WOULD NOT ALTER OUTCOME Mrs Paine's clinic book shows on 8 September 1988 "Paul Jones 12.30". The next entry is in respect of another person and appears to show "1.50". The evidentiary force of Mrs Paine's note is increased if the first sentence in Mr Baker's statement "It was 12.20 on Thursday 8/9/88" becomes part of the evidence. There are then two statements written shortly afterwards which suggest the accident took place during the lunch break. Thus the rejection of Mr Baker's statement assumes particular significance. However no attempt was made by the appellant to tender this sentence alone as a statement. The tender was of the whole document. Plainly, whatever strength the first sentence had favouring the appellant, the balance favoured the respondent. Mr Baker went on to say "it was just before sport at the hall when I was playing with a pen". "We were all waiting for Mrs Write [sic] to come for sport." Mr Baker's oral evidence was that the incident happened inside the actual hall. The evidence continued: "Q. What were you doing in the hall? A. Well we were going to go in there, and just sit in there and wait for her to come. Q. In relation to when your class was to start, was it before or after the class was due to start that you went into the hall? A. After. 8 UNREPORTED JUDGMENTS Q. After the class was due to start? A. Yes." In cross examination he accepted that he went to the hall after the bell rang to mark the end of lunch. In order to make the document admissible under s14B the appellant was bound to call Mr Baker, the respondent not having called him; s14B(1)(ii). Read as a whole I cannot see how the document would have altered his Honour's conclusion based substantially upon the evidence of the three pupils either that they attended the hall after the bell rang or that there would have been no reason for them to go there until the bell rang. His Honour made this finding despite having the benefit of Mrs Paine's written statement in the clinic book which was likely to be a more accurate record of time than Mr Baker's. I am satisfied that the existence in Mr Baker's statement of the first sentence, if the document had been admitted in evidence, would not have altered the outcome of the trial and, accordingly, its rejection did not occasion any substantial wrong or miscarriage which would enable this Court to order a new trial or otherwise interfere with the judgment at first instance; PtS1 r16(1) of the Supreme Court Rules. CONCLUSION In my opinion the appeal should be dismissed with costs. Beazley JA I agree with the judgment of his Honour Justice Sheller. Appeal dismissed with costs Counsel for the Appellant: A S Morrison SC Solicitors for the Appellant: H K Roberts Counsel for the Respondent: L King SC Solicitors for the Respondent: Kell Heard McEwans and Lough