In an encouraging case for plaintiffs, the New South Wales Court of Appeal * has recently shown that even an absence of recollection, eye-witnesses and sobriety may still lead to substantial damages.
Jackson was found by joggers, bloody and unconscious, at the bottom of a drain in open parkland with his two dogs at about 7am in July 2002. An ambulance arrived about 20 mins later and the officer’s observations were entered in the ambulance records.
He had no recollection of the accident but it was accepted that Jackson had been drinking heavily and had left his home intoxicated with the dogs at about 3.30am. No one saw what befell him. His resting place was immediately below a 1.5m drop at the top of which was a lip that was concealed by ground plants and “was within the contour of the slope and the lighting in the park”.
Jackson argued he must have incurred his injuries from a fall caused by tripping or stepping over the unseen lip at the top of the concrete drain.
After assessing damages, Her Honour applied NSW Civil Liability Act s 50 relating to intoxication. The court ruled that even though the injury was likely to have occurred even if the Jackson had not been intoxicated, the minimum reduction of damages of 25% must be applied. This section is similar to Queensland’s s 47 which mandates a presumption of contributory negligence and also applies a minimum 25% deduction.
The trial judge found in Jackson’s favour that the lip and the wall created a hazard for people walking across the park at night: it would “not readily be seen by a sober person taking care for his or her own safety” and “would be totally unexpected to someone coming on it at night.”
However Her Honour was not satisfied that Jackson had proved how he fell and came to be injured or even that his accident occurred during the hours of darkness.
Judgment was given for the council.
The matter went on appeal based on the admissibility of the ambulance opinion (admitted as “business records”) as to causation and in particular the entry “? Fall from 1.5 metres on to concrete” which was adjacent to “patient history” and immediately below another entry – “found by bystanders”.
The NSW Court of Appeal upheld the admission of the opinion in the records. The opinion as to causation was less positive than it would be without the question mark, “it was nevertheless an inference” and the question mark did not “rob the opinion of all probative force”:
The history here was what had happened to the patient. … They had the advantage of putting together, .. all the physical perceptions of what they saw about him, his injuries, the placement of his body in relation to the wall and drain and all other relevant perceived facts. This caused them or one of them to raise the question whether he did not fall from the 1.5 m wall. It did not cause the maker to posit any other possible cause….With the advantage of contemporaneity and all these perceptions, I am satisfied that in the light of the failure of either side to call the ambulance officers to obtain any account of the nature and character of their perceptions of the matters to which I have referred, it was necessary to receive into evidence the opinion that there was a question whether Mr Jackson had fallen 1.5 metres on to the concrete.
The appeal was allowed and damages assessed at $271,300 but reduced by 25% for intoxication were awarded in the total of $203,475.
* Jackson v Lithgow City Council  NSWCA 136 (11 June 2010)