Wright v Optus Administration & Anor (No 5) [2013] NSWSC 1717

Supreme Court New South Wales

Medium Neutral Citation: Wright v Optus Administration & Anor (No 5) [2013] NSWSC 1717 Hearing dates: 12 November 2013 Decision date: 12 November 2013 Jurisdiction: Common Law Before: Campbell J Decision: The statement of Ms Hedges dated 15th March 2011 is admitted as exhibit B. Catchwords: EVIDENCE - admissibility - Part 3.4 Evidence Act 1995 (NSW) - s87 - whether statement of witness contains admissions - whether statement contains representations to which it is reasonably necessary to refer in order to understand admissions - whether witnesses representations related to a matter within the scope of her employment Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 Refina Pty Ltd v Binnie [2009] NSWSC 311 Category: Procedural and other rulings Parties: Glen Wright (plaintiff) Optus Administration Pty Ltd (first defendant) IPA Personnel Pty Limited (second defendant) Representation: Counsel: RA Cavanagh SC with CJ Callaway (plaintiff) JB Simpkins SC with DF Villa (first defendant) W Reynolds (second defendant) Solicitors: Firths (plaintiff) Hunt & Hunt (first defendant) Sparke Helmore Lawyers (second defendant) File Number(s): 2009/297493

EX TEMPORE Judgment 1The present ruling concerns the admissibility of a statement of Natalie Hedges dated 15th March 2001. Mr Cavanagh of senior counsel, who appears with Mr Callaway for the plaintiff, has tendered the statement on a number of grounds, principally, however, on the ground that the statement contains admissions and is, therefore, within the exception to the hearsay rule established by Part 3.4 of the Evidence Act 1995 (NSW). 2Mr Simpkins of senior counsel, who appears with Mr Villa for the first defendant, objects to the tender of the statement. He disputes that the conditions of admissibility established by s 87 of the Evidence Act have been satisfied, and in any event argues that I cannot be satisfied that the relevant representations contained in the statement are either admissions or representations to which it is reasonably necessary to refer in order to understand an admission within the meaning of s 81(2)(b) of the Act. 3In order to rule on this dispute it is necessary for me to set out s 87 in full because this is the section which the parties have focused on in the course of presenting their argument. 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority. 4The word "admission" is defined in the dictionary to the Evidence Act as meaning a previous representation that is made by a party and which is "adverse to [the party's] interest in the outcome of the proceedings." 5The plaintiff's case is that he suffered personal injury in the nature of what is now referred to as mental harm in the course of his employment with the second defendant. The case falls into that category of case which is referred to by the legal profession as a labour hire case. The second defendant is a labour hire company who contracted with the first defendant to lend the services of the plaintiff to the latter for the purpose of working in its call centre. Before starting work in the call centre, and I am relying upon the plaintiff's evidence at this stage, he was required to undergo a course of training at Optus' premises. Ms Hedges, it is not disputed, was an employee of Optus responsible for carrying out the training. The plaintiff's case is that one of the other trainees attempted to throw him off the rooftop balcony of Optus' premises, and as a result of being exposed to that risk of death or serious injury he suffered a recognised psychiatric condition. 6It is necessary to say just a little more about the circumstances. As I have said, the plaintiff's case is that his assailant was a fellow trainee. On the fourth day of the course that person absented himself from the training room twice. On the second occasion he was gone for a length of time. The plaintiff received messages both in writing and orally that the assailant wanted to see him, which messages the plaintiff ignored. His case is that Ms Hedges noticed the to-ing and fro-ing in the class, which she correctly deduced was related to the noticeable absence of the assailant. 7The plaintiff says Ms Hedges absented herself for the purpose of, I am asked to infer, finding the absent trainee. In a nutshell, after a period of time she returned to the class and asked the plaintiff to accompany her to the roof where the absent trainee was asking to speak to the plaintiff. 8As I understand the issues the first defendant does not dispute these basic facts, including the fact that the plaintiff went to the roof with Ms Hedges, that he spoke to the assailant on the roof and that the assailant tried to throw him off the roof. I have garnered this understanding not only from the statement of issues filed by the first defendant, but also from the course of Mr Simpkins' cross-examination of the plaintiff. 9The first defendant, it seems to me, disputes the existence of a duty of care, or, if one is owed, its scope or extent, and especially the question of breach. Naturally the questions of duty and its extent are questions of law, but those questions may well be informed by the facts of the case, given that the dominant approach to the law negligence sanctioned by the High Court of Australia is a fact-sensitive and multifactorial consideration of the whole of the relationship between the parties to the litigation. Certainly the question of breach is purely a question of fact. 10Bearing that context in mind for this decision, I turn then to the arguments of the parties. As I have said, the defendant contests that the conditions of admissibility fixed by s 87 have been established, and does so in part by reference to the decision of Brereton J in Refina Pty Ltd v Binnie [2009] NSWSC 311 applying the decision of McDougall J in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90. 11By dint of s.87, I am to admit evidence of a previous representation if it is reasonably open to find that when the representation was made the person was an employee of the party or had authority otherwise to act for the party and the representation related to a matter within the scope of the person's employment or authority. 12In making a decision about that I am entitled to have regard to previous representations of the person that tend to prove, inter alia, that the person was an employee of another person; or had authority otherwise to act for another person; or the scope of the person's employment or authority (s.87(2)). 13With great respect I agree with the submission of Mr Cavanagh that it is important in determining the question to which s 87 relates to understand that there are two pathways to admissibility under s 87(1)(a). One pathway relates to the question of authority, as that question might be understood, in my view, in the law of agency; the second pathway relates to the scope of a person's employment. 14Effectively s 87(1)(b) provides for alternative conditions. The plaintiff relies upon the scope of the employment condition. To satisfy that condition it is sufficient, in my judgment, to show that the person was an employee of the party and the representation related to a matter within the scope of the person's employment. 15As I have said it is not disputed that at the relevant time Ms Hedges was an employee. So far as the scope of her employment is disputed I am entitled, in my judgment, to have regard to the tendered statement for the purposes of deciding whether the representations contained in the statement were within in the scope of her employment (s.87(2)(c)). 16In the Refina and Ingot Capital Investments decisions, it seems to me, the focus was on the other limb, pathway, or condition of the section, that is to say the question of authority. In particular, in Refina the person said to have made the admission on behalf of the party was a contract farm manager, not a direct employee. And the gravamen of Brereton J's decision was that such an agent would not have authority to make statements about the principal's title, or for the purpose of compromising a boundary dispute with a neighbour. 17Likewise in Ingot Capital Investments the question was concerned with the authority of the person making the admission. The gravamen of McDougall J's decision, expressed at [20] of his Honour's reasons, was that the legislation looked at: ...the general authority of the person whose previous representation is sought to be tendered to make statements of the kind embodied in the particular representation... 18It seems to me the scope of employment limb is much broader. Once one is satisfied that the person making the representation is an employee of the party then the second aspect is only that the representation related to a matter within the scope of the person's employment. It is not necessary to prove that the employee had actual or ostensible authority to make representations on behalf of the party. 19I might add in passing that had the person making the representation in Refina been an employed farm manager, rather than a contract farm manager, on the findings of fact made by Brereton J the decision would have been the same, because it is unlikely that statements about the employer's title or about settling a boundary dispute would be the type of thing that related to a matter within the scope of a farm manager's employment. 20In any event, in order to decide whether the second part of the employment limb of s 87(1)(b) is satisfied it is necessary to consider in broad terms the statement itself. It seems to me that looking at the statement as a whole, not only was Ms Hedges the trainer of the group of trainees, but she also had some responsibility for their supervision during training. 21I draw this inference from the fact that she was the only person who had ongoing supervision of the people while they were in the training room, that she kept something like an attendance roll, that when people arrived late that was something of which she took note, and that when she noticed the assailant was absent she expressed concern and enquired of the class as to his whereabouts. When she received no satisfactory answer she went to look for him herself. 22I also infer from the statement that in the exercise of that supervisory function she attempted to have the absent trainee return to the class and participate in his training. When he would not do so, she reported the matter to her superiors, who after further enquiry, acquiesced in her idea that the plaintiff be brought up to speak to the assailant as the assailant was asking for him. And she did that. 23I have no doubt on the basis of that material that what she told the police on 15th March about the events of that day related to a matter within the scope of her employment, being the training and supervision of the trainees. 24In my judgment it is reasonably open to find that when the representation was made Ms Hedges was an employee and the representations that she made related to a matter within the scope of her employment (s.87(1)(b)). 25I turn then to the second question about whether the statement contains admissions. In this regard it is important to bear in mind that two categories of representation are made admissible by the provisions of s81. The first an admission itself; and the second is other previous representations, as I have said already more than once, to which it is reasonably necessary to refer in order to understand an admission. To give that latter category specific meaning I observe that I take it to refer to representations which, although themselves not qualifying as admissions, are necessary to give context to an admission, and, to that extent, relevant in the extended sense discussed in s 55 of the Evidence Act. 26During the course of oral argument Mr Cavanagh divided the various paragraphs contained in the statement, which I regret to say are numbered in the most haphazard manner, into categories: those containing admissions and those which were admissible to provide context. I do not propose to go through, in this already lengthy ex tempore judgment, all of those matters. 27But it seems to me that certain things are admissions. On the other hand, what I have said already about the scope of Ms Hedges' employment is relevant to what happened on 15th March and to that extent provides relevant context. 28What she says about the unfolding of events on that day indicates to me, amongst other things: (a)the events unfolded over a significant period of time; (b)that there was enough about the appearance and behaviour of the assailant to cause actual concern on the part of Ms Hedges and her superior; (c)that Ms Hedges and her superiors decided upon a course of conduct to deal with the situation which included co-opting the assistance of the plaintiff, and which exposed the plaintiff to the sphere of influence of a person who was acting as though he was on drugs, or perhaps had some mental illness, in a situation where there was a long drop, albeit with a railing around it, to the ground below. All of those facts are relevant to the question of foreseeability, whether that question relates to the existence and nature of a duty of care, whether it relates to the question of a breach of duty of care, and whether it relates to the question of remoteness in causation. Those facts relate to these questions in a manner, which if accepted at the end of the case, will assist the plaintiff to prove the necessary ingredients of his cause of action. To that extent, therefore, these representations made by Ms Hedges are adverse to the interest of the first defendant in the outcome of the litigation. 29I might also add to the extent to which it can be shown that there are whole paragraphs, sentences or passages which would not fall into that category I have identified, I am satisfied that the whole of the statement should be admitted for the purposes of giving context to those representations, which I have held are admissions. 30My ruling is that the statement of Ms Hedges dated 15th March 2011 is admitted as exhibit B.