This case is discussed in an earlier blog post – see The role of Paramedic records in litigation (October 28, 2010).

To recap the facts, Mr Jackson left his home in Lithgow at about 3.30am, taking with him his two dogs.  He was found at the bottom of a drain at about 6.57am, with multiple, serious injuries.  An ambulance was called.  The paramedic’s case notes recorded a history of “? Fall from 1.5 metres onto concrete”.

Mr Jackson sued Lithgow Council as the owners and occupiers of Endeavour Park.  The drain ran through Endeavour Park but it was not obvious.  There was a small brick wall, painted green and obscured by vegetation so it was neither obvious it was there nor that there was a steep drop of about 1.41 metres on the other side.   The attached photos, taken from Google Maps, shows the drain.  The question was did Mr Jackson fall over the vertical drop (now protected by a fence) because he was approached the drain from the top of the park (in which case that wall and the fall was not obvious) or did he somehow slide down the sloping side surfaces?

The drain where Mr Jackson was found

At the trial in the NSW District Court the trial judge found that the defendant council owed Mr Jackson a duty to take reasonable steps to make the drain safe.  In considering what a reasonable person would do in response to a foreseeable risk the trial judge had to consider ‘the expense, difficulty and inconvenience of taking alleviating action’ (Wyong Shire v Shirt (1980) 146 CLR 40 [14 (Mason CJ)).   She found that doing what the council in fact did after the event, namely erecting the small fence (that can be seen in the photo, above)demonstrated that taking alleviating action was neither difficult nor prohibitively expensive.  As a result she found that the defendant council had breached its duty of care.  That was not, however, the end of the matter.  The plaintiff had to prove that the fault of the council caused his injuries.  That would be accepted if he had approached the drain from the obscured side, that is coming down hill toward the drain, but if he approached the drain from one of the sides, the drain would have been visible and the fence on the obscured access, even if it had been there at the time, would not have stopped him falling in.  The reality is that there was no evidence (as the plaintiff could not remember what happened) as to how he came to be in the drain.  The plaintiff argued that the inference to be drawn was that he had fallen over the obscured wall and therefore been injured by the defendant’s negligence.

In a case like this the plaintiff must prove his case ‘on the balance of probabilities’ that is he had to satisfy the court that it was more likely than not that the accident occurred due to the defendant’s negligence.  In the District Court the judge found that she could not distinguish between the possible causes of the accident so she could not say that it was ‘more probable than not’ that he fell over the side that the Council were negligent for not fencing.

The plaintiff appealed.   In the Court of Appeal it was held that the record from the treating paramedics, that the court erroneously thought said ‘Fall from 1.5 metres onto concrete’ was an opinion that added weight to the inference that the plaintiff had fallen over the wall and down a vertical wall, rather than having approached the drain from the other side and slipping down a more gentle slope.   Based on that evidence the Court find the trial judge should and could have concluded that the plaintiff’s case was established and he should succeed in his claim for compensation.

The case went to the High Court where it was discovered that the Court of Appeal had not been given the proper evidence.  They had decided the case on the assumption that the case sheet said ‘Fall from 1.5 metres onto concrete’ when in fact it said ‘? Fall from 1.5 metres onto concrete’.  Did the presence of the question mark (?) make a difference?  The matter was sent back to the Court of Appeal.  In the second hearing the Court of Appeal confirmed the decision that the appeal should be allowed and the plaintiff’s case should succeed.   There was another appeal to the High Court and the decision in that case is the subject of this post.

The critical issue, by the time the matter got to the High Court the second time, was what use could be made of the note ‘? Fall from 1.5 metres onto concrete’?  As a general rule a witness cannot give evidence of an opinion, they can say what they saw, heard or otherwise observed but what conclusion is to be drawn from those observations is a matter for the ‘trier of fact’ that is the judge or jury if there is one.    The paramedics did not see Mr Jackson fall so any opinion they had as to the cause of his injuries had to be inadmissible unless it fell within an exception to the rule against opinion evidence.  The two relevant exceptions are expert opinion, where a person who is qualified as an expert in a subject area is allowed to draw an opinion that a person without such expertise could not draw; and lay opinion.  Lay opinions are the sorts of opinions we all draw every day but could not explain what it was you saw or perceived that led to that opinion.  When you see someone and conclude that they are angry, or happy, or drunk, or a teenager or middle aged, you are making an inference from a myriad of factors most of which you could not identify, certainly not if you had to give evidence about the matter some time later.  We take in all that we see and reach a conclusion, because we could not really explain how we reached that conclusion we are allowed to give evidence of our opinion (eg ‘he was drunk’) and not all the things we observed to draw that conclusion.

The majority held that the paramedics were not expressing an opinion at all.  They were recording matters relevant to the treatment of their patient but were not expressing an opinion as to the cause.  The majority said (Lithgow City Council v Jackson [2011] HCA 36, [38] (French CJ, Heydon and Bell JJ)):

The impugned representation cannot be said to have stated an “opinion” …  The ambulance officers’ records are so shrouded in obscurity about what data they observed and suggest so great an unlikelihood that that data could support, or were seen as pointing to, any definitive inference that it is not possible to find on the balance of probabilities what the impugned representation was stating.  It is therefore not possible positively to find that it stated an opinion.

Because of that the evidence should not have been permitted.  Even if it was accepted that the paramedics were expressing an opinion, it was still inadmissible.  The paramedics were not experts (Ibid, [48]).  That does not mean they were not expert paramedic s but they were not expert at drawing conclusions about the forces of physics that would be applied to a falling human body and could therefore, from their observations of the patient’s injuries and how they found him, draw an opinion about how he came to fall.

The opinion was also not a lay opinion; it was not some unconscious drawing together of a number of indescribable facts that could not really be explained except by a summary expressed as an opinion.  There was probably nothing to stop them saying what they had seen, what they observed and allowing the court to use that evidence to draw an inference as to what happened.

And that was the problem; there was probably nothing to stop them giving that evidence other than the officers were never asked!  The plaintiff’s lawyers simply never contacted the paramedics to ask what they meant, did they have an opinion on what happened and why, what did the “?” mean to them – did it mean they thought he fell but weren’t sure, or perhaps that they had been told he’d fallen but based on their observations they thought that was not the case?  Further in the Court of Appeal Basten J held that it was reasonable not to call the paramedics. He said (Jackson v Lithgow City Council [2010] NSWCA 136, [75]):

In my view the cost of obtaining evidence from the ambulance officers, bearing in mind the size of the claim, the limited likelihood of the officers having any independent or refreshed recollection of detail which would assist the Court, combine to demonstrate that, in a practical sense, it was not unreasonable to rely upon the contemporaneous document.

The majority in the High Court, after referring to Basten J’s decision made this commentary (Lithgow City Council v Jackson [2011] HCA 36, [52] (French CJ, Heydon and Bell JJ))):

He then decided that in view of the (unproved) expense involved in calling the ambulance officers and the (unproved) unlikelihood that they could remember anything useful, “it was not unreasonable” to admit the impugned representation

The plaintiff could have called the ambulance officers or given evidence to explain why they could not be called but he did not.  Nor did the plaintiff’s involve any expert engineering, biomechanics or medical evidence that would allow the court to infer, on the balance of probabilities, what had happened.   (In the Court of Appeal , on the second hearing, Basten J had said that he would find for the plaintiff based on the other evidence, including photos of the drain and evidence as to where the plaintiff was located and where body fluids, blood and urine had been located so in his view the ambulance case sheet was not essential.  In the High Court Crennan J (dissenting) also agreed that the plaintiff’s verdict could be supported by that other evidence, but French CJ, Heydon and Bell JJ, and in a separate judgment, Gummow J, disagreed).  The result was that when it was held the evidence of the officers record sheet could not be used to prove the cause of the injury, there was no evidence to distinguish between the various ways the accident could have been caused, accordingly the plaintiff could not establish that it was the defendant’s negligence that caused his injuries and his case was dismissed.)

Legal lessons

First it should be understood that this case turned on detailed examination of provisions of the Evidence Act 1995 (NSW).  Lawyers interested in the legal lessons will be interested in the detailed examination of those provisions which have not been outlined here.  My task is to consider the lessons for paramedics, not lawyers.

For paramedics the case confirmed that their records are ‘business records’ and therefore can be used to prove the facts that they record, so that an entry that a drug was given is evidence that the drug was in fact given.  But that does not allow what is otherwise inadmissible to be admissible.  The paramedics were not allowed to give evidence as to the causation (if that is in fact what they intended to do) but rather could give evidence as to what they observed.  Of course they don’t write every detail on their case sheet.  That is neither practical in terms of the need to actually treat the patient, not record matters of evidence for later litigation nor is it why details are recorded on the case sheet.  The comment ‘? Fall from 1.5 metres onto concrete’ is recorded to help inform all those involved in health care what may have happened and what injuries to look out for.

The paramedics could have given evidence of what they observed, they perhaps could even have been qualified as experts to allow them to give an opinion if they had been called.  That is the most disturbing thing of this case, the plaintiff’s lawyers did not think to try to contact the officers, for whatever reason they didn’t afford them sufficient professional respect to consider that they should be found and interviewed.  Perhaps they would not have recalled the case but perhaps they would have but for both the lawyers, and then later the judges on appeal to decide that they knew what the case sheet meant and what the officers may have been able to add, without asking them, is in my opinion quite disrespectful.  The lesson is not that paramedics are not professional or expert in their field, but there is clearly still some way to go until the legal profession (or at least some members of it) recognise that ambulance services have come a long way from ‘load and go’ and to realise that paramedics, like doctors, nurses and lawyers are professionals entitled to professional respect.

Michael Eburn
1 October 2011.