Parker v Jervis[2013] QDC 271

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellants claim in the Magistrates Court was for damages for personal injuries allegedly suffered as a result of being struck by a red Toyota Corolla motor vehicle (registration number 587-PGY) driven by the first respondent on 28 November 2006. The claim was dismissed on 27 March 2013.

2. [2]
   This is an appeal against that decision.

Grounds of appeal

3. [3]
   The grounds of appeal, as filed, are:

1. The Magistrate erred in his use of documentary material (exhibit 2) which was tendered on the basis that they were evidence of records made but not that they were evidence of the truth of the facts addressed therein. In turn the Magistrate led himself into error in making the following findings:

1. (a)
   The appellant lied in relation to his employment status at the time of his accident;

2. (b)
   The appellant lied in relation to his attendance at the Princess Alexandra Hospital.

2. The Magistrate erred as to the evidence of the witness Mr Jaime (formally Sergeant) Black in finding that the appellant did not identify the first respondent to Mr Black on the night of the accident. Mr Black gave evidence that the appellant did so identify the first respondent.

3. The Magistrate erred in his findings as to the evidence of Dr Fraser in finding that the appellant had “no compensable ongoing injury” that would affect his ability to work or earn an income now or into the future. Dr Fraser gave no such evidence. In his report he accepted the appellant suffered ongoing discomfort. In evidence Dr Fraser accepted the appellant may suffer discomfort in driving a forklift.

4. The Magistrate erred in not referring in his reasoning to the inconsistent and unreliable evidence by the first respondent or to his attendance at the appellant’s house on prior occasions.

4. [4]
   After some brief discussion at the commencement of oral submissions, counsel for the appellant sought the courts’ leave to add a further ground of appeal. Leave was granted and that ground of appeal is:

The Magistrate erred in rejecting the evidence of the purported identification of the Corolla in that:

1. (a)
   the plaintiff’s evidence was that he identified the car as the car driven by the first respondent on previous occasions; and

2. (b)
   the Magistrate erred on his findings in respect of the findings of credit for the reasons identified in Ground 1.^[1]

Brief summary of allegations

5. [5]
   The appellant claimed that he suffered an ongoing soft tissue injury to his coccyx as well as a number of other lesser soft tissue injuries. Both liability and quantum were in issue.

6. [6]
   The learned magistrate succinctly summarised the particulars of the appellant’s allegations in paragraphs [2] to [5] of his reasons as follows:

“[2] In short, the plaintiff asserts that at about 12:45am on that date, he was asleep at his home at 317 Ipswich Road, Annerley. He says that he was awakened by the movement of the house; He says he went to the sun room where he saw a person trying to gain entry through a window. He says he punched the person, who fell backwards onto the ground. The plaintiff says he then exited the house by the back door; proceeded to the front of the house where he saw the person run to a car and begin to drive off. The plaintiff says that the driver of the car swerved towards him, hitting him, and that he went over the bonnet, sustaining the subject injuries. He says that the vehicle then did a U-turn, came back towards him, and then turned off into Ipswich Road.

[3] The plaintiff alleges that the car that hit him was driven by the first defendant. He further alleges that that car was a red Toyota Corolla bearing registration number 587-PGY (‘the Corolla’). The Corolla was owned by the first defendant’s father, Mr Charles Jarvis, and insured by the second defendant.

[4] The plaintiff has claimed damages totalling $145,281.78. The bulk of that sum is comprised of claims for past economic loss totalling $25,109.16 in respect of alleged lost earnings and superannuation (plus interest on those amounts) for a period of 68.15 weeks; and future economic loss (including superannuation) of $103,550.

[5] The Statement of Claim asserts tortious breaches of duty by the first defendant, founded upon the allegation that he:

2(b) Was the driver of a red Toyota Corolla motor vehicle with the registration number587-PGY (‘the vehicle’) which was an ‘insured motor vehicle’ as that term is defined pursuant to s 4 of the Motor Accident Insurance Act 1994 (‘the Act’); and

2(c) Was an ‘insured person’ as that term is defined pursuant to s 4 of the Act.”

Issues to be proved

7. [7]
   Counsel for both the appellant and the respondents agree that the learned magistrate correctly identified at paragraph [6] of his reasons that to be successful in his claim the appellant needed to prove on balance of probabilities:

1. (i)
   that it was the first respondent who was the driver of the car; and

2. (ii)
   that the car driven by the first respondent was the Corolla.

Ground 1: The use to be made of documentary exhibits

8. [8]
   Ground 1 is based entirely upon the appellant’s assertion that the material contained within exhibit 2 was tendered with the express reservation that it could not be used as proof of everything recorded in it. That exhibit contained, amongst other things, hospital and medical records relevant to this matter, police records relevant to this matter and the appellant’s employment records. It was tendered with the consent of all parties.

9. [9]
   Counsel for the appellant has identified the following exchange as being the relevant discussion as to the use that the magistrate could make of the records:

“MR MORTON: Yes, very well, your Honour. We have a bundle of documentation, your Honour, which is voluminous because it’s all admitted but it contains voluminous records in relation to the earlier injury and the seriousness of it. It includes all of the medical material that I’ve been putting.

…

BENCH: Well, I was wondering about what you were going to do in respect of these earlier medical records ---

MR MORTON: Yes.

BENCH: --- and how you intended to prove them or whether they were going to be tendered by consent.

MR MORTON: They are admitted. They were admitted pursuant to a notice to admit.

…

MS SORBELLO: Can I just clarify the basis on which they are admitted. They’re admitted as true and correct copies of the records but not ---

MR MORTON: That’s right.

…

BENCH: Just for my own sake, I’ve now had two bundles of documents go in, in which it’s – they have been – it’s they’re said to be tendered on the basis that they – the documents themselves … more or less speak for themselves or their contents don’t appear to be admitted: is that a fair summary?

MR MORTON: They’re evidence of the facts which they assert, they’re evidence of the records made. I am not sure if I’m ---

BENCH: I can understand why that might be the case in respect of hearsay statements but what’s supposed to be done in terms of proving documents that – we want to rely upon them truth of the contents?

MR MORTON: Well can I give you an example this way. If – the documents are admitted as the record. If we call the doctor to say, ‘yes, I was at the Buranda Medical Centre in November of 2006, and I saw’ – ‘and there’s my record of this attendance but I don’t remember a word of it’, and it would be surprising if they did … then we would ask you to infer that the record is as accurate as evidence we’re going to get. So we’ll submit to you that the records should be proved – or should be taken to be proof of what’s asserted in them. There’s – but ---

BENCH: Well, that can’t be 100% the case if you ---

MR MORTON: No, the ---

BENCH: --- dispute the truth of that the plaintiff said to the doctors in the first place.

MR MORTON: Oh, we don’t largely.

…

MR MORTON: We’re happy to say that you should act on the basis that the records accurately reflect what he said or he complained of … even if he can’t remember it and it – and in the purpose of tendering them is simply to establish the records but we ask you to find that they accurately reflect what he said at the time … I mean there’s no greater proof we can reasonably give of that.”

10. [10]
    Prior to that, exhibit 1 had been tendered by the appellant’s counsel during her opening address. Exhibit 1 relevantly contained an expert medical report, a police traffic accident incident report, police patrol log and notebook extracts, other miscellaneous public documents, PA Hospital Emergency Department clinical records, an ambulance report and photographs of a motor vehicle bearing registration number 587 PGY. The only qualification to the use that could be made of the documents contained in that exhibit was raised by counsel for the respondents^[2]

“MR MORTON: No. We accept that the conditions enabling the tender of the report of Dr Myers under s 92 would be made out, so we’re prepared to tender it. But I don’t consent to it, we disagree with what’s in it. That’s a question of weight, though.

The remaining documents are tendered. A number of them refer to the presence of the first defendant at the scene, that’s in dispute. They are tendered not on the basis that they establish that, but on the basis that they record various things. But they’re not evidence of the proposition that the first defendant was actually at the scene, because that’s significantly in dispute.”

11. [11]
    The appellant now submits that the magistrate erred by relying on the contents of some of the documents in exhibit 2 in finding:

1. (i)
   the appellant lied about his employment status at the time of the incident; and

2. (ii)
   the appellant lied in relation to his attendance at the Princess Alexandra Hospital.

12. [12]
    Much therefore depends upon the basis on which those documents were tendered. The appellant submits that they were tendered exclusively as a true and correct copy of records, but not as to proof of that which they contain. That however, is not consistent with the submissions which were made at the time of their admission into evidence. Counsel for the respondents specifically submitted that the documents “should be taken to be proof of what’s asserted in them” and that the magistrate could find that they “accurately reflected what he said at the time”. Counsel further submitted that there was no greater proof that the defendants can reasonably give of what was said by the appellant to others.

13. [13]
    Those submissions were made at the very end of counsel’s submission as to the use the magistrate could make of the documents. Counsel for the appellant did not submit to the contrary. Towards the beginning of the discussion regarding the use that could be made of the documents in exhibit 2, counsel for the appellant did say:

“Can I clarify the basis on which they’re admitted. They’re admitted as true and correct copies of the records but not …”

She did not finish that sentence. That statement failed to clarify anything. No further submissions by counsel for the appellant were then made. She therefore made no submissions as to the use that could be made of the documents in either exhibit 2. That was also quite consistent with the lack of any qualification regarding the documents in exhibit 1, other than that identified by counsel for the respondents.

14. [14]
    It is hardly surprising therefore that the magistrate relied upon the contents of the hospital records and the employment records as proof of their contents. In fact, in such circumstances, he was quite entitled to do so. In the circumstances of this matter s.92 of the Evidence Act 1977 has application. Section 92 relevantly states:

“Admissibility of documentary evidence as to facts in issue

92(1) In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document intending to establish that fact shall, subject to this part, be admissible as evidence of that fact if –

1. (a)
   The maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or

2. (b)
   The document is or forms part of a record relating to any under taking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.

3. (2)
   The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where –

1. (a)
   …

2. (b)
   …

3. (c)
   …

4. (d)
   it cannot reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; or

5. (e)
   no party to the proceeding who would have the right to cross examine the maker or supplier requires the maker or supplier being called as a witness.

…”

15. [15]
    In this matter counsel for the appellant did not require the maker or supplier of the information contained in any of the documents to be called as witnesses. In fact, as I have said, exhibit 1 was tendered by counsel for the appellant.

16. [16]
    Accordingly, the magistrate did not err in relying on the contents of the hospital records or the employment records as constituting evidence of any fact contained therein.

17. [17]
    The appellant has submitted that the magistrate erred in relying on the records of the Princess Alexandra Hospital to conclude that the appellant attended that hospital the evening following the evening of the incident the subject of the claim. It is submitted that the magistrate should have accepted the appellant’s evidence that he attended the hospital the same night as the incident. It is further submitted that the appellant’s account in that regard was supported by the entry in the log of occurrences for the Annerley Police Station^[3] and the Traffic Incident Report^[4], both of which record that he attended the hospital the same night as the incident.

18. [18]
    Given my conclusion that the magistrate was entitled to treat the hospital records as proof of their contents, the only remaining argument for the appellant on this issue, is that the magistrate had no reason to reject his evidence, particularly given the support it had from the police records.

19. [19]
    No evidence was given however as to who supplied that information to the police. Inferentially, it most likely was the appellant himself. There was no suggestion that the information came from the hospital. Accordingly, the police records do not support the appellant’s evidence in that regard as he cannot pick up his credibility by his own bootlaces. Furthermore, the magistrate identified many areas of the appellant’s evidence where he was critical of his truthfulness and credibility. They were justifiable criticisms. In those circumstances I can find no error on the part of the magistrate in accepting the accuracy of the hospital records.

20. [20]
    Similarly, the magistrate was entitled to rely upon information contained within the appellant’s employment records as to his employment status at the time of the alleged incident. Again, I can find no error on the part of the magistrate in that regard.

Ground 2:  Mr Black’s evidence

21. [21]
    Mr Black was an investigator, although at the time of this incident he was a sergeant of police. He attended the appellant’s house in the early hours of the morning following the subject incident and spoke to both the appellant and the appellant’s de facto wife, Ms Brazier.

22. [22]
    In evidence-in-chief, Mr Black was asked^[5]:

“Now, on the night when you were there, you said you spoke to two people. Did one or the other or both of those people suggest to you who the offender might be?—  In the suggestion from memory it was the female at the address-----

Hmm?-- -----had advised me of who they believed the offender was.

Do you recall Mr Parker ever suggesting to you, on that evening, who the – what the identity of the offender might be? – I don’t recall him stating the name to me of that person.”

23. [23]
    After that conversation Mr Black created a record on his police computer by telephoning a call centre to create the record.^[6]  The record stated:

“The suspect in this matter is believed to be Robert Jarvis. This has  been ascertained by the informants girlfriend.”

24. [24]
    The appellant’s defacto wife did not give evidence and there was no suggestion in the evidence that Ms Brazier witnessed the incident.

25. [25]
    In cross-examination, Mr Black said:^[7]

“So then, if you look at the bottom of page 19 of your notebook, where the – the note there is, ‘driver?’. Is that a question you would have asked of the person you were interviewing? – yes.

Yes. So that’s a record of the question that you asked Mr Parker at the time? – I would have, yeah ---

Yes?  --- --- Asked, ‘who – who was the driver?’  Yes.

Yes. And your response that you’ve written there is, ‘Robert Jarvis, boyfriend of housemate’? --- Yes.

That would – is a record of the response given to you by the plaintiff? – I would assume either the plaintiff or someone else that was present.

…

Now, again, there is a note at the second last paragraph of page 19? – Yep.

‘Parker believes the male was Jarvis.’? – Yes.

You would have written that if you were told that? – Yes.

Yes. You – sorry – we can take it then that you took from the plaintiff that he believed that the male who struck him at – that night was Robert Jarvis? – Correct, yes.” 

26. [26]
    It is on the basis of this passage of evidence that the appellant submits that the magistrate erred in concluding that it was Ms Brazier, and not the appellant, who identified the first respondent as the offender.

27. [27]
    Mr Black’s answers in cross-examination however do not support that argument. He at no time said that it was the appellant who named the first respondent as the offender. In fact he specifically said in his evidence-in-chief that he could not recall the appellant stating the name of the offender. His contemporaneous record is consistent with his recollection. What the appellant “believed” as to who the offender was, is a different issue to who, if anyone, the appellant named. It may be that his belief was purely based upon what Ms Brazier had said

28. [28]
    Further, details provided by the appellant in a Notice of Claim form to the Nominal Defendant^[8] were quite inconsistent with the appellant being able to identify the offender. The only detail that the appellant gave in that form was that the car was red, notwithstanding that the form requested all relevant details including the make and model of the car, its registration number and the name of the driver. Despite having the assistance of his solicitor in completing that form, the appellant nevertheless failed to identify the driver.

29. [29]
    Additionally, the appellant completed a statutory declaration, prepared by his solicitor on 8 November 2007.^[9]  That declaration:

1. (a)
   recorded that he had visited his solicitor on 12 February 2007 and at that time “investigations into the identity of the driver and vehicle were continuing”^[10]; and

2. (b)
   stated that whilst he was in prison between 5 June 2007 and 3 August 2007 a private investigator “visited me and asked me to have a look at some pictures of a car and to confirm whether it was the car that hit me. The investigator said he was sure that he had found the offending vehicle”^[11]

30. [30]
    The magistrate was quite entitled to take these matters into account given that they are quite inconsistent with the appellant’s evidence that he was able to name the first respondent as the driver of the car when questioned by Mr Black shortly after the event.

31. [31]
    Accordingly, I can find no error in the magistrates reasoning.

Ground three: Dr Fraser’s evidence

32. [32]
    Ground three would appear to be relevant only to the issue of quantum.

33. [33]
    In assessing future economic loss, the magistrate summarised the effect of Dr Fraser’s evidence as being “the plaintiff has no compensable ongoing injury that would affect his ability to work or earn an income now or into the future.”^[12]

34. [34]
    Dr Fraser’s evidence in cross-examination was^[13]:

“Ms Sorbello: At that time, at the time you saw the plaintiff he complained of discomfort when sitting for long periods of time? --- Yes, that’s right.

Yes. And sometimes his tailbone hurt when walking? --- Yes.

And it was worse in cold weather? --- Yes.

…

‘The plaintiff complained of tenderness to palpitation in the region of the coccyx?’ --- Yes.

…

You confirm that your opinion is that those complaints are referable to the accident on 28 November 2006? --- Yes.

…

So given those complaints, it wouldn’t be unusually [sic] if the plaintiff reported difficulties when driving forklifts, that, unlike commercial trucks, don’t have suspension seats, would it? --- Difficulty, he might have experienced pain. I think he could drive the forklift without any difficulty.

But it’d be expected that he’d experience pain? --- He might have some discomfort.”

35. [35]
    The appellant submits that the magistrate has misstated the effect of Dr Fraser’s evidence. I disagree. Having “some discomfort” does not necessarily mean that the plaintiff has a compensable ongoing injury that would affect his ability to work or earn an income. Dr Fraser’s opinion, whilst restricted by the question to being relevant only to the issue of driving a forklift, was that the appellant could drive a forklift without difficulty i.e: there is no compensable ongoing injury that would affect this ability to earn an income in that regard.

36. [36]
    Furthermore, it is apparent from the magistrate’s reasons that he did not accept the appellant’s complaint that he had problems with his coccyx arising from this incident. In that regard, the magistrate noted:

1. the total attendances by the appellant on doctors after the incident amounted to four consultations with either general practitioners or to have x-rays taken^[14];
2. at no stage after the incident did he complain to a doctor of pain in his coccyx; the only complaint of any spinal or related pain was on 26 February 2007 when he made a complaint of thoracic pain related to a 2002 motorbike accident;^[15]
3. that he did not accept the plaintiff’s evidence that he had been told by a doctor that nothing more could be done for him and that is why he had not sought medical treatment in relation to his coccyx;
4. he thought that if there had been pain in relation to his coccyx, it is more likely than not that the appellant would have complained to a doctor and sought medication;^[16] and
5. Dr Myers, whose report was tendered by the appellant, had difficulty attributing the coccyx pain to the accident and the cause “was not clear on clinical grounds”.^[17]

37. [37]
    The respondent has submitted that in these circumstances, anything that Dr Fraser had to say was basically irrelevant. I tend to agree with that submission, although as I have already noted, I do not find that the magistrate misstated the effect of Dr Fraser’s evidence.

Ground four: First respondents evidence

38. [38]
    The appellant has submitted that the magistrate erred in not referring in his reasons to the inconsistent and unreliable evidence of the first respondent or to his attendance at the appellant’s house on prior occasions. The magistrate’s failure to do so is understandable however, given his conclusion that the appellant failed to prove his case to the requisite standard.

39. [39]
    Even if the magistrate had found the first respondent to be a dishonest or an unreliable witness, that would not have changed the outcome of the trial. This is because:

“If by cross-examination you prove that a man’s oath cannot be relied on, and that he has sworn he did not go to Rome on May 1^st, you do not therefore prove that he did go to Rome on May 1^st; there is simply no evidence on the subject.”^[18]

40. [40]
    The magistrate’s failure to refer to the evidence of the first respondent is therefore irrelevant.

Ground five: Identification of the car

41. [41]
    Ground 5(b) can be dealt with succinctly. In paragraph [28] of his reasons, the magistrate, in not accepting the appellant’s purported identification of the Corolla registration number 587-PGY as being the vehicle which struck him said, at the very start of the paragraph:

“In any event, regardless of my view of the plaintiff’s lack of reliability and credibility as a witness, I do not accept his purported identification in July 2007 of the Corolla as the vehicle he says hit him during the incident as a true identification by him of that vehicle.”

42. [42]
    The appellant has submitted that the magistrate’s decision in that regard was, despite his expressed statement to the contrary, affected by his conclusions that the appellant was an unreliable witness of little credit. I reject that submission. The magistrate not only expressly excluded such considerations, he also then went onto explain why he rejected the appellant’s purported identification of the vehicle. He said^[19]:

“The plaintiff’s claim against the second defendant relies wholly upon the court accepting that purported identification. In my view the plaintiff did no more than adopt the proposition stated to him by the unnamed private investigator. That person (who was not called by the plaintiff in this trial), on the plaintiff’s evidence, merely made a conclusive statement that he had identified the vehicle and showed the plaintiff a picture of it. The plaintiff played no part in the purported ‘identification’ by the private investigator, and no evidence was lead as to how the investigator managed to make his purported identification some eight months after the incident and in the absence of any other witness to the incident other than the plaintiff. In view of the fact that the plaintiff was unable on the night of the incident, when his memory of what he had seen was at its freshest, to offer more than the description that he had been hit by a ‘small red car’, his evidence that some eight months later he was able, when shown a daylight photograph of a Corolla, bearing a registration number he had no knowledge of, to positively identify it as the car that hit him (as opposed to any other small red car he might have been shown), is implausible at best, and I do not accept it. Accordingly, I reject the plaintiff’s evidence of the purported identification of the Corolla.”

No criticism is made of the magistrate’s recitation of the facts in that paragraph. Given those facts, the rejection of the appellant’s purported identification of the vehicle was inevitable.

43. [43]
    As to ground 5(a), the fact that the appellant said that he had previously seen the first respondent driving in a small red car is not the issue. The issue is whether, on balance of probabilities, he has correctly identified the car involved in the incident. In that regard, the appellant said in cross-examination that on the night of the incident he was uncertain if the offending vehicle was a Ford Laser or a Toyota Corolla.^[20]  He also conceded that prior to seeing the private investigator’s photographs when in prison some months later, he had no knowledge of the registration number of that vehicle.^[21]  Finally, it is of course of particular relevance to note that the only descriptive of the vehicle the appellant could give in his Notice of Claim to the Nominal Defendant was that the vehicle was red.

44. [44]
    For these reasons the magistrate did not err in rejecting the appellant’s purported identification of the vehicle.

Orders

1. Appeal dismissed

2. I will hear submissions as to costs.