Jackson v Lithgow City Council [2010] NSWCA 136

New South Wales Court of Appeal

CITATION: Jackson v Lithgow City Council [2010] NSWCA 136

HEARING DATE(S): 16 April 2010

JUDGMENT DATE: 11 June 2010

JUDGMENT OF: Allsop P at 1; Basten JA at 46; Grove J at 110

1. Appeal allowed. 2. Orders made by the District Court on 13 June 2007 be set aside and in lieu thereof it be ordered: (a) there be verdict and judgment for the plaintiff in the sum of $203,475 to take effect as at 13 June 2007; (b) interest thereon be payable and calculated by reference to the Civil Procedure Act (NSW) 2005, s 101; and DECISION: (c) the defendant pay the plaintiff's costs. 3. The respondent pay the appellant's costs of the appeal including the first and second appeals to this Court. 4. Each party bear its and his own costs of the special leave application to the High Court of Australia. 5. Within 14 days: (a) the appellant file and serve an amended notice of appeal challenging the rejection of the ambulance records by the primary judge; and (b) the respondent file and serve a notice of contention that the primary judge was correct in rejecting the ambulance records on the basis of the arguments put forward in this Court.

CATCHWORDS: APPEAL – remitter from High Court for rehearing of appeal – first hearing of the appeal proceeded on an inaccurate record of evidence – question mark symbol cut off in original appeal papers – effect of question mark on probative force of evidence - EVIDENCE – admissibility and relevancy – notes of ambulance officers – inference of fact as to cause of injury and surrounding circumstances – business records under Evidence Act 1995 (NSW), s 69(1) – hearsay rule did not apply – representation made by maker of the document on the basis of information indirectly supplied by someone who had or might be reasonably supposed to have had personal knowledge of the asserted fact - EVIDENCE – admissibility and relevancy – opinion evidence under Evidence Act 1995 (NSW), s 78 – opinion of underlying matter or event includes perceptions of the aftermath of an incident – meaning of the word "necessary" in s 78(b) – the section does not require absolute necessity - NEGLIGENCE – causation – evidence – whether on the balance of probabilities the appellant suffered his injuries as described in the ambulance officers' notes