Sydney City Council v Sutherland [2002] NSWCA 97

New South Wales Court of Appeal

CITATION : Sydney City Council v Sutherland [2002] NSWCA 97 FILE NUMBER(S) : CA 40241/01 HEARING DATE(S) : 4 April 2002 JUDGMENT DATE : 16 April 2002

PARTIES : Sydney City Council - Appellant Mary Sutherland - Respondent JUDGMENT OF : Meagher JA at 1; Brownie AJA at 2; Palmer J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2939/99 FILE NUMBER(S) : LOWER COURT Murrell DCJ JUDICIAL OFFICER :

COUNSEL : Mr J Hislop QC with Mr G Seib - Appellant Mr P Hennessy SC with Mr R Ingram - Respondent SOLICITORS : McCulloch & Buggy - Appellant Keddies - Respondent CATCHWORDS : No question of principle. CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railway Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) 73 ALJR 306 DECISION : Appeal allowed with costs, judgment and order below set aside, substitute a judgment for the defendant with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40241/01 DC 2939/99

MEAGHER JA BROWNIE AJA PALMER J

16 April 2002 SYDNEY CITY COUNCIL v Mary SUTHERLAND JUDGMENT

1 MEAGHER JA: I agree with Brownie AJA 2 PALMER J: I also agree with Brownie AJA 3 BROWNIE AJA: The respondent was injured on 27 January 1997 in an accident in a swimming pool controlled by the appellant. On the respondent's case, she slipped near the edge of the pool and fell in. On the appellant's case, she deliberately dived into the pool, at its shallow end. She struck the bottom of the pool heavily, sustaining fractures of the cervical spine, and injuries to the chin and lips. 4 The pool was of "Olympic size", and there was a tiled coping at its shallow end. The respondent's case was that she slipped on the coping; and she was generally supported by the evidence of her neighbour and friend, Ms Gyorfi. The appellant's case depended to a large extent on the evidence of Mr McInnes, another patron of the pool, apparently independent of the parties. He described seeing the respondent dive into the pool, in an exaggerated manner. The learned trial judge, Murrell DCJ, preferred the evidence of the respondent and of Ms Gyorfi to that of Mr McInnes. 5 The appellant contends for the acceptance of the evidence of Mr McInnes, and the respondent relies upon the principles discussed in Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries v Australian National Railway Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) 73 ALJR 306. The appeal depends upon the application of those principles to the circumstances of the case. 6 The critical part to the judgment appealed from is in these terms:- "The plaintiff was essentially an honest witness. She often had difficulty expressing herself in a clear and concise manner and at times her evidence was quite confused. She is a person of limited resources who has had a difficult life involving a long history of substance abuse (initially heroin and more recently Rohypnol and Valium). She was deeply traumatised by the accident itself. Primarily, the lack of clarity and confusion in her evidence is the result of these factors. However, there were some respects in which the plaintiff evaded the truth and others in which she embellished it. She has convinced herself that she recalls some peripheral matters, about which she has no real recall, including the route by which she walked to the shallow end of the pool. She was evasive concerning what might be regarded as sensitive matters, such as the difficulties which she and Mr Brennan had experienced with Mr Brennan's son. I accept that the plaintiff probably did have a pregnancy in 1998, as indicated by the Langton Centre notes, although the plaintiff flatly denied this allegation. I consider that, to a small extent, the plaintiff exaggerated her ongoing fears and experience of cervical pain. Mr Brennan was generally a reliable witness, although there was probably a small degree of embellishment involved, as one might expect from a witness who was the plaintiff's closest personal friend. However, this did not significantly detract from the important aspects of Mr Brennan's evidence. I have a high level of confidence in Ms Gyorfi's reliability as a witness. She gave her evidence in a forthright manner. There were considerable difficulties with her giving evidence in the English language, but she managed to convey her meaning with relative clarity. Initially, it was proposed that an interpreter be used to assist Ms Gyorfi with her evidence. Undoubtedly, there was and is a neighbourly friendliness between the plaintiff and Ms Gyorfi, but I do not consider that the relationship coloured Ms Gyorfi's evidence. Mr McInnes delivered his evidence in an impressive style. The evidence was within a narrow compass but nevertheless contained significant errors. First, Mr McInnes was adamant that the plaintiff and Ms Gyorfi had been accompanied by three or four children. Second Mr McInnes recalled that Ms Gyorfi was out of the pool at the time of the accident and only jumped into the pool when she observed that the plaintiff had been injured. These are matters which Mr McInnes had a considerable opportunity to observe. His inaccuracy in observing these matters throws a question on the quality of his observations in other respects. It was a summer's day and Mr McInnes had been relaxing in the company of his partner and her daughter, sunning himself. No doubt, he did observe the plaintiff entering the water and flinging her arms into the air in the course of that entry. He thought that she was diving into the pool and the passage of years may have reinforced that impression, but I consider that he was mistaken. Prima facie, the ambulance service entry 'patient stated she dived …" is evidence strongly supportive of Mr McInnes' version of events. The Langton Centre and hospital notes are also supportive in that they refer to a "dive". The immediate source of the information in the Langton Centre notes appears to have been someone other than the plaintiff, but the plaintiff is the most obvious source of the information in the hospital notes. However, the documents have all been admitted via the business records exception to the hearsay rule. The true source of the information in the documents has not been tested, and the reliability of the source has certainly not been tested. The references to a "dive" contrast with the plaintiff's contemporaneous statements concerning a slip (made to Dr Stalley) or fall (made to Dr Hassim). I prefer to rely on my assessment of the witnesses, whose evidence has been tested and whom I have had an opportunity to observe." 7 Mr Brennan was a friend of the respondent; perhaps he was her de facto husband, but it is not clear whether this is so. The Langton Clinic, according to its stationery, is a facility of the Eastern Sydney Area Health Service. For some five years before the accident the respondent had been seen there from time to time, and she was provided with a daily dose of Methadone. The hospital referred to is the Royal Prince Alfred Hospital, at which the plaintiff was treated after the accident. 8 As sometimes happens, the resolution of the central conflict in the case – here, whether the respondent slipped and fell, or dived into the pool – is assisted by an examination of what the witnesses said about other topics, of limited relevance except to the extent that they throw light on the question of the reliability of the evidence of the witnesses. In this case, the disputed circumstances which need to be examined, principally because of the way in which they reflect on the reliability of the three central witnesses (the respondent, Ms Gyorfi and Mr McInnes) included who it was who came to the assistance of the respondent after her accident, what time the accident occurred, what time the respondent reached the hospital, when and how she was treated there, and some other relatively minor matters; and in reviewing the evidence, there will be some degree of overlapping between these topics. 9 I should however begin with her Honour's judgment, where she spoke of two significant errors in the evidence of Mr McInnes. There appears to be a degree of circularity of reasoning at this point: one can only say that Mr McInnes was in error on the second topic mentioned (whether Ms Gyorfi was or was not in the pool before the respondent's injury occurred) if one has first decided to prefer the evidence of the respondent and of Ms Gyrofi to that of Mr McInnes; otherwise all that one can say is that there is conflict in the evidence of the various witnesses. 10 The first error mentioned by her Honour does not seem to me to be particularly "significant". Mr McInnes was a stranger to the respondent and Ms Gyorfi. He noticed the respondent, by reason of her tattoos, and he watched her. He seems to have had no other initial interest in her, her companion Ms Gyorfi, or the child or children accompanying those two women. Accepting that the respondent went to the pool only with Ms Gyrofi and the latter's five year old daughter, it is not certain that a disinterested observer such as Mr McInnes should have his evidence discounted because, without more, he thought in consequence of his casual observations of the respondent that there were two or three other children in the same party as the respondent. The topic was scarcely explored in evidence. For all that the evidence showed, some other young children might have been in company with Ms Gyorfi's daughter, perhaps only ephemerally. At best from the perspective of the respondent, the error of Mr McInnes was on a matter of a marginal significance. 11 I do not think there is much that can usefully be said about the evidence of the three central witnesses, going directly to the issue where the respondent dived into the pool. The respondent and Ms Gyorfi both said, in an imprecise and unclear way that the respondent slipped and fell but did not dive. Perhaps remarkably, the respondent did not say in chief that she had slipped, but the central thrust of her evidence and the evidence of Ms Gyorfi was that she did slip, and did not dive. In contrast, Mr McInnes described what, on his version, can only have been a deliberate dive: "It looked like she orchestrated the dive, it looked like it was exaggerated, she was showing off"; and "I watched her glide out away from the edge of the pool". If there was nothing else, the finding of the trial judge on this point would be unassailable. 12 On various occasions the respondent appears to have said that she dived into the pool. On other occasions, she said she slipped. In favour of the respondent, it must be said immediately that it is not clear that all of the records of her supposed admissions that she dived come from the record maker's personal observation that the respondent said the words in question. However, viewing the record as a whole, it is difficult to avoid the conclusion that on some occasions at least, there is no sensible reason for thinking that the statement in question did not come from the respondent herself. Both Ms Gyorfi and Mr Brennan were at the hospital on the day of the accident, but neither of them suggests that she or he made any of the supposed admissions recorded there 13 Before coming to this detail, it may be more convenient to go to the events which happened immediately after the accident. On the respondent's case, she fell into the pool, and was injured. Whilst still under water, in consequence of her fall, she noticed the swimming costume of Ms Gyorfi – a bright iridescent pink – and swam towards it. Ms Gyorfi then helped her to keep her head out of the water. She said that no one from the pool or the pool manager associated with the appellant assisted her in any way, and it was not until the ambulance arrived that she was given any real assistance, except by Ms Gyorfi, and by the man of Asian appearance mentioned below. She was then taken to the hospital, but not treated there, despite her obvious and obviously serious injuries, for some five hours. Further, she and Ms Gyorfi insisted that the accident occurred in the early part of the afternoon, whereas on the appellant's case the accident occurred at about 4 pm. 14 The respondent said that, almost immediately after the accident, she was supported in the water by "a Chinese gentleman", also described as "an Australian Asian man", an "Australian Chinese man", or an "Asian man". It seems clear that this person was Mr Murr, who was employed in a part time capacity by the company managing the pool complex for the appellant, as supervisor of the pool facility. Contrary to the evidence of the respondent and Ms Gyorfi, he was in the position of life guard or life saver. He said that he heard a commotion, dived into the pool, initially supported the respondent himself, and then placed or helped to place under her a floatation board, upon which the respondent remained until the ambulance arrived. It seems clear that Mr Murr assisted the respondent in this way, and not Mr McIness, who did not enter the pool. No doubt it goes without saying that, immediately after the accident, the respondent's powers of observation were significantly impaired must have been limited, but these details go to the reliability of her evidence, and that of Ms Gyorfi. 15 More significantly, both the respondent and Ms Gyorfi insisted that the accident occurred early in the afternoon, and that there was gross delay in the respondent being treated. Mr Murr completed a form, that afternoon, in which he said that the accident occurred at 4 pm. He also recorded there: "Mary [that is, the respondent] dived into pool hit her head on the bottom of the pool floor & knocked herself unconscious. Mary hit her mouth and front of her head on the pool floor …I dived in the water put arm under Mary turned over went to begin resuscitation she then gained consciousness and I put her onto a spinal board called ambulance allowed her to float in the water until ambulance arrived". 16 The record from the Ambulance Service, signed by two ambulance officers, records a number of matters now relevant. The ambulance was called out at 1619 hours; it left to answer the call at 1621; it reached the pool complex at 1624; it departed from there at 1648; it reached the hospital at 1700; and it was "clear" at 1721. Under the heading "History", there is recorded the circumstance that the ambulance officers found the respondent "lying supine on pool spine board; … pool attendants in water. Pt [Patient] stated she dived into pool & hit her chin & mouth on pool bottom." 17 There are recorded, at 1630, 1640 and 1650 a series of detailed observations of the respondent, concerning her pulse, blood pressure, respiratory rate, Glasgow Coma Scale measurements and other matters. 18 Next, the hospital records cannot be reconciled with the evidence of the respondent and Ms Gyorfi. The records show that a triage nurse saw the respondent at 1706 hours, and recorded "diving accident". An admitting nurse (compare the entries at pages 87 and 91 of volume 3 of the blue book) made an entry, noted as 1720 hours: "BIBA [brought in by ambulance] after diving into pool and hit shallow bottom …" 19 Another hospital record titled "neurological observations" records various matters as at 1715, 1815, 1915, 2015, 2110 and 2300 hours; and in that document under the heading "diagnosis", there is recorded in what appears to be yet another handwriting "diving accident hit chin/mouth on pool bottom …" Next, there is a record that a medical practitioner prescribed Pethidine at 2000, and that it was administered at 2010. Then, in what seems to be yet another hand writing, there is a record at 2035: "Dived into shallow end of swimming pool". This appears to be the note of an examining medical officer. 20 Another record of that day, apparently by another staff member, with no time recorded says: "Pt [patient] allegedly dived into shallow pool". In the circumstances, I consider that this record ought not to be considered as other than hearsay, or the repetition of some earlier record. 21 There are further notes made`` on 28 January 1997. The first is a nursing note: "new admission …following dive in shallow pool"; and I think that this record should also be put aside, for the same reason. However, another record, apparently taken by a medical practitioner, reads: "dived into shallow end swimming pool yesterday pm. Dived off side of pool not diving board" (emphasis in the original). Finally, in a different hand writing again, there is an entry dated 29 January under the heading "Case History Notes": "C spine hyper extension inj [injury] pt [patient] states dived into swimming pool … " 22 The ambulance and hospital records seem to me in all the circumstances to constitute irrefutable evidence, contradicting the evidence of the respondent and of Ms Gyorfi concerning the times at which the events occurred, and contradicting the proposition that she received no real medical attention for some five hours. There is no doubt room for some degree of ambiguity about meaning of "medical attention" and similar expressions, but on this topic, the evidence of the respondent and of Ms Gyorfi seems to me to be glaringly improbable, when considered in the context of the other evidence. 23 There is a related problem about the respondent's evidence. Whilst she at one stage insisted that the accident occurred early in the afternoon, and that there was a delay of five hours before she was properly treated, when she was cross-examined, she said that she was not sure what time she got to the hospital because she was "in and out of consciousness". This cannot be reconciled with the ambulance or hospital records. 24 It may be that there is another difficulty with the evidence of the respondent and of Ms Gyorfi, and in her Honour's reasoning. If one accepts the accident form completed by Mr Murr, the respondent did not regain consciousness until he was attending to her. However, this matter was not explored in cross-examination, and I think it better to put it aside. 25 However, putting that question aside, there is another difficulty. The respondent said that she fell into the pool and, before surfacing, went to a point which she identified as being one third of the distance down the pool, away from the shallow end. She said that, without surfacing, she then saw Ms Gyorfi's costume and swam back under water to Ms Gyorfi, and then grasped her. Given the circumstances, and particularly the severity of the respondent's injuries, this seems unlikely, and her Honour rejected this part of the respondent's evidence. 26 More significantly, Mr McInnes said that Ms Gyorfi was not in the water until after the accident occurred. If this is correct, it could hardly have been the fact that the respondent saw Ms Gyorfi's swimming costume in the pool. Mr McInnes said that the respondent floated to the surface and that Ms Gyorfi jumped into the pool to assist her and that Ms Gyorfi did this until Mr Murr arrived with some "inflatable apparatus". I do not think it is possible to reconcile the evidence of the respondent and Ms Gyorfi on the one hand with that of Mr McInnes on the other hand, as to when it was that Ms Gyorfi entered the pool, except by reference to more general considerations concerning the reliability of the evidence of the three witnesses. 27 Mr McInnes said that he himself did not enter the pool at all. It is common ground now that Mr Murr came to the respondent's aid, and that he placed or helped to place some device under her. The respondent and Ms Gyorfi denied that any one associated with the pool came to the respondent's aid, but it is quite clear that Mr Murr did so. Her Honour considered that the respondent did not realise that Mr Murr was a pool supervisor, because he was not wearing an identifying uniform, and therefore she put aside the inaccuracy in the respondent's evidence, and, by inference, the inaccuracy of the evidence of Ms Gyorfi. However, in another part of her judgment, when dealing with the accident form completed by Mr Murr, her Honour appears to have reasoned that the statement in that form that the respondent had dived had been made by Mr McInnes rather than by the respondent, since Mr McInnes was "the only witness" referred to in the report. Rather perplexingly, her Honour then noted that Mr McIness had a deep olive complexion. 28 This statement was not explained, and it may be that it points to some confusion or error on the part of her Honour. On the face of things, Mr McInnes's complexion was irrelevant, unless there was some confusion between him and the man of Asian appearance, who supported the respondent in the pool. 29 The appellant points to another supposed error, although of itself it is almost trivial. Having outlined the respondent's history of drug abuse, her Honour recorded without comment the respondent's statement that she had last used heroin some eight years earlier, that is about 1993, and then said – perhaps intending to refer to the respondent's evidence, or perhaps intending to refer to a history given by the respondent to Dr Morse, or perhaps to summarise the records of the Langton Clinic, or perhaps to express her conclusion: "She continued to use Benzodiazapines. She did not use heroin, but used cannabis occasionally". The appellant points out that the Langton Clinic records show that the respondent had used heroin in 1995 and 1996. 30 The appellant attacked the honesty of the respondent, pointing to the conflicts in her evidence about heroin use, and to a prior conviction for uttering a forged chemist's prescription, however, I see no sound basis for interfering with the trial judge's finding that the respondent was essentially an honest witness, as distinct from needing to consider the reliability of her evidence. 31 Mr Murr said that, after the ambulance officers took control, Ms Gyorfi spoke to him, saying that the respondent had been drinking alcohol and smoking marijuana before going to the pool complex; and she asked Mr Murr not to tell any body. The respondent and Ms Gyorfi denied the proposition and the underlying facts. The only other evidence on the point comes from a note of the admitting nurse at the hospital: "Had ½ glass wine only". Again, the point is of itself of minor significance, but it does tend to support the evidence of Mr Murr. Her Honour expressed no view about his credibility, and reading the transcript, there is no reason for thinking that he was other than a generally truthful and reliable witness. There was no attack made upon his credibility. The cross-examination of him concerning this topic is perhaps best described as tangential; it was suggested to him that his failure to record that the respondent was affected by alcohol was significant; but he made no observation one way or the other as to whether the respondent was or was not under the influence of alcohol (or for that matter marijuana), as distinct from giving evidence about his conversation with Ms Gyorfi. For what it is worth, various records in evidence include statements that the respondent has smoked marijuana at times, both before and after the accident. This is not worth much, but it does tend to support the proposition that Mr Murr, who seems to have had no contact with the respondent at all, except on the day of her accident and at the hearing, did not imagine the statement about marijuana. 32 Returning to the question whether the respondent dived or slipped and fell, the appellant points to the report of Dr Coyle, an expert witness retained by the respondent's solicitors on behalf of the respondent. He reported to the solicitors that he had been instructed to assume that the respondent "fell as she was attempting to step down from the edge of the pool", recorded that he had obtained the history from the respondent, and asked the solicitors to give her the opportunity of reviewing that history so that any errors or omissions by him could be corrected. More than two years later, he reported again, without noting the need to make any corrections. Cross-examined about this, the respondent did not deny giving the history recorded, but denied that she was stepping down when the accident occurred. 33 There are various histories recorded, by different doctors and in the records of the Langton Clinic, but in the circumstances I do not think it proper to treat any of them as having been given by the respondent. It may be that they are no more than repetitions of other histories recorded. Similarly, it does not seem to me to be helpful to point to histories given to various doctors that the respondent fell rather than dived. With one exception, they were all given some considerable time after the accident occurred and the critical question is whether the respondent's evidence is reliable. The one exception is a history recorded by Dr Stalley, in a report written some three years after the accident. He became the respondent's orthopaedic specialist. He said: "The story, as given at that time, was that she slipped on the edge of a pool and hit her chin", and as the respondent points out he was not required to attend for cross-examination. However, there is nothing in the hospital records to corroborate this and it is not clear where the doctor obtained the history from. One might also observe that the respondent did not call him as a witness to clear the matter up. Assuming however that it was the respondent who gave the doctor that history, it is inconsistent with the other histories given, and the question to be resolved is whether what the respondent has said is reliable.