Australia: Common sense prevails – evidentiary onus confirmed by the High Court

Curwoods Case Note
Last Updated: 19 October 2011
Article by Shannon Say

Judgment date: 28 September 2011

Lithgow City Council v Jackson [2011] HCA 36

High Court of Australia1

In Brief

  • A statement of a lay opinion in a business record must comply with s 78 of the Evidence Act.
  • Section 78 is not a "best evidence" provision, permitting the reception of evidence if there is no better evidence. It is instead directed to a relationship internal to the evidence of the perceiver – the relationship between the perceiver's perceptions and the perceiver's opinion.
  • The High Court affirms that onus of proof of admissibility rests with the party tendering the evidence.
  • To prove causation the evidence needs to establish that the alleged cause was more probable than any other.


The respondent, Mr Jackson, was found unconscious and badly injured in a concrete drain in a park at Lithgow. His body was found near a small retaining wall partly covered by foliage. Mr Jackson's injuries prevented him from recalling how his accident occurred. However, it was known that he had consumed a substantial amount of alcohol prior to his accident.

A record made by ambulance officers who treated Mr Jackson at the accident scene (the record) indicated "?Fall from 1.5 metres onto concrete" (the impugned representation).

Mr Jackson sued Lithgow Council in negligence on the basis that he had fallen over the small retaining wall which was not barricaded and the existence of which was not otherwise advised to him.

Prevision decisions

Whilst the trial Judge found that Lithgow Council owed Mr Jackson a duty of care and that it had breached this duty, Mr Jackson's claim was still dismissed on the basis that he could not establish how his accident occurred. In particular, he could not establish that any breach of duty on the part of Lithgow Council was causative of his accident.

The matter was heard twice by the Court of Appeal. Mr Jackson was initially successful in the Court of Appeal but the decision was overturned in the High Court and the matter referred back to the Court of Appeal. Mr Jackson was successful in the Court of Appeal on the second occasion and the Court accepted the record into evidence and was satisfied that the impugned representation contained in the record established causation. Mr Jackson advanced an argument that the trial Judge made no reference to the impugned representation contained within the record. The Court of Appeal found the impugned representation was a conclusion made by ambulance officers (despite them having not been called to give evidence) based on what they had observed. The Court of Appeal found the impugned representation was an opinion, admissible by operation of s 78 of the Evidence Act as it was an exception to the opinion rule set out in s 76 of the Evidence Act.

High Court decision

After twice hearing the case, the majority of the High Court ultimately upheld Lithgow Council's appeal on the basis that the impugned representation was inadmissible and that the plaintiff had not established negligence on the part of Lithgow Council causative of his injuries. In making this finding, the High Court embarked upon a detailed analysis of s 59(1) (Hearsay Rule); s 69(2) (exceptions to the Hearsay Rule); s 76(1) (Opinion Evidence Rule); and s 78 (exceptions to the Opinion Evidence Rule) of the Evidence Act and their application to the record.

The High Court noted that the impugned representation was hearsay evidence and the hearsay exceptions provided for in s 69(2) of the Evidence Act could not be satisfied, as the ambulance officers did not have personal knowledge of the cause of the accident, nor did any witnesses (if they obtained this information from witnesses). However, as this issue was not debated by the parties before the Court (and as, even if it is assumed that the s 69 difficulty did not exist, the impugned representation was inadmissible on other grounds anyway) the Court held it was not necessary to deal any further with this point.

The High Court was concerned primarily with 2 questions and they were:

  1. Was the Court of Appeal correct to find the record, or more particularly the impugned representation contained within the record, was admissible?

  2. Even if it was incorrect in finding the record admissible, was there sufficient other evidence to establish causation?

The High Court debated whether a statement of lay opinion in a business record has to comply with ss 76 to 79 of the Evidence Act. In this regard, the High Court ultimately found that it did, because if it did not (and it only applied to testimony evidence) it would result in a preference to calling hearsay evidence rather than direct evidence.

Before the High Court, Lithgow Council advanced 4 arguments and they were:

  1. The impugned representation was irrelevant;
  2. The impugned representation did not express an opinion;
  3. If it did express an opinion, it did not satisfy s 78(a) of the Evidence Act; and
  4. If it did express an opinion, it did not satisfy s 78(b) of the Evidence Act.

The High Court agreed with Lithgow Council in that the impugned representation was so ambiguous that it could not be said to rationally affect the assessment of the probability of the fall (as required by s 55 of the Evidence Act).

However, assuming the alternative, the High Court went on to find that the impugned representation was not an opinion within the meaning of s 76 of the Evidence Act. Opinion evidence is prohibited by the Evidence Act unless it complies with section ss 77-79. The Court found that the record was so obscure it was not possible to find on the balance of probabilities that the impugned representation was stating an opinion (contrary to the findings of the Court of Appeal). If the impugned representation was not an opinion the opinion evidence sections of the Evidence Act were irrelevant. However, the impugned representation was inadmissible as the Court had already found it irrelevant.

Further, assuming the alternative again, if the impugned representation did express an opinion, the High Court confirmed that the onus was on Mr Jackson to establish that the impugned representation fell within an exception created by s 78 of the Evidence Act. Ultimately they concluded that he failed to do so.

Section 78 provides that:

"The opinion rule does not apply to evidence of an opinion expressed by a person if:

  1. the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
  2. evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event."

The Court considered that ss 78(a) and (b) could not be satisfied. The majority held that the "matter or event" that the person saw, heard or perceived, or which the opinion evidence is necessary to understand the perception of, was Mr Jackson's fall. The majority found that the ambulance officers did not hear, see or perceive the fall and therefore the impugned representation was not admissible under s 78(a). In doing so, the Court stated the purpose of s 78(a) was to allow witnesses to give evidence about perceptions or common everyday matters without going into every little aspect of what underpinned that perception.

The impugned representation was not admissible under s 78(b) as the purpose of that provision is to allow evidence of opinions in everyday situations where the basis is so fleeting or scarcely perceptible, or too complicated to give evidence about. The opinion must be necessary to understand the witness's perception. The majority found that the impugned representation did not satisfy these criteria as to the fall.

The High Court further clarified that:

"it is possible to conclude – not in this case but in others – that a person's opinion is based on what that person perceived without the person providing an exhaustive list of what the person perceived. It is true, though, that the less the witness or other observer states his or her primary perceptions, the harder will it be for the tendering party to establish the admissibility in s 78(a) because of the difficulty of establishing that the opinion is "based" on the perceptions and the condition of admissibility in s 78(b) (because of the difficulty of establishing that the opinion is necessary to obtain an adequate account or understanding of the person's perceptions)."

Mr Jackson also advanced, by way of a Notice of Contention, that in the absence of the record, the balance of other evidence, being his injuries, the positioning of his body and body fluids found after the accident, and configuration of the drain were sufficient to establish causation. He contended that the High Court should adopt Basten JA's conclusions on causation in the Court of Appeal.

Basten JA concluded that Mr Jackson fell over the vertical wall when moving downhill in the dark. In arriving at this conclusion he considered the nature of Mr Jackson's injuries as severe and consistent with an unprotected and unanticipated fall from a height greater than body height, rather than Mr Jackson stumbling when seeking to traverse the sloping wall of the drain. He found that this was also consistent with the distribution and collection of bodily fluids at a point 2.7 m from the vertical wall and about 4.5 m from the sloping walls. His Honour was of the view that this indicated that Mr Jackson tripped over the top of the vertical wall.

The majority of the High Court disagreed with this contention on the basis that such conclusions could only be reached based on expert evidence (and there was none). The High Court concluded that these findings did not correspond with the evidence. It also reaffirmed that the plaintiff carried the onus to establish causation and the state of the evidence was such that it was no more probable that the plaintiff tripped over the vertical wall than fell down the sloping walls.

Interestingly, Crennan J, whilst agreeing with the majority regarding the interpretation of the Evidence Act and the inadmissibility of the ambulance record, found that Mr Jackson had established causation on the balance of probabilities and, therefore, liability in Lithgow Council. Crennan J found that the more probable inference to be drawn from the facts, having regard to both Mr Jackson's injuries and the position of the stains from body fluids in the drain, was that Mr Jackson unexpectedly fell from the height of the vertical wall.


This decision highlights the importance of obtaining appropriate expert evidence and first hand evidence. Had Mr Jackson obtained evidence from an appropriate accident reconstruction expert, and called the ambulance officers to clarify what their observations were and what was intended by the impugned representation, he may have succeeded.

When determining what evidence to call, assess what facts need to be established, what evidence is available to prove these facts and weigh these against the cost effectiveness of calling this evidence and the size of the claim.

Ultimately it is refreshing to see the High Court reaffirm the principles in respect of the onus of proof. The onus remains on the party seeking to tender the evidence to establish that it is admissible and particularly in the case of causation, the onus of proof does still rest with the plaintiff to properly make out his/her case - something which is often forgotten.


1 French CJ, Gummow, Heydon, Crennan and Bell J

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