The High Court has upheld the appeal in Lithgow City Council v. Jackson [2011] HCA 36, holding that the exception to the inadmissibility of opinion evidence under s78 of the Evidence Act 1995 (NSW) (EA) is limited to the purpose of permitting “… the reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated” (per French CJ, Heydon and Bell JJ at [48]).


The accepted facts are that, in the early hours of the morning on 18 July 2002, Mr. Jackson (the plaintiff), after a falling out with his partner, opted to take his two dogs for a walk in the park to ‘cool’ off.

What then occurred between the hours of 3am and 7am, only the plaintiff and his two dogs will ever know.

The plaintiff was found shortly before 6.57am lying badly injured in a drain at the park in pool of dried blood and urine. The plaintiff’s loyal subjects, the two dogs, “with the fidelity which is proverbially attributed to those creatures” were at their master's side. The dogs’ ferocious expressions of loyalty were believed to have hampered attempts to give the plaintiff aid.

The plaintiff's case against the Lithgow City Council (Council) was that he fell by tripping from the small retaining wall at the top of the western vertical face of the drain.

It was accepted the plaintiff was “moderately” intoxicated at the time.

He suffered severe head, face and spinal injuries as a result of the fall, with no direct witnesses to the incident (apart from his two dogs).

The plaintiff relied heavily on a statement in a record of the Ambulance Service of New South Wales made by an ambulance officer summoned to assist him.

The statement was “…fall from 1.5 metres onto concrete” (the impugned representation). The plaintiff contended that the impugned representation established that he fell from the vertical face of the drain.

Liability for the plaintiff’s injuries was dependent upon the admissibility of lay opinion evidence.

At first instance, the District Court of New South Wales found that the Council owed the plaintiff a duty of care; and that the Council was in breach of it in having failed to take steps to avoid the risk of injury, such as erecting a fence.

Her Honour found that the risk posed by the small wall at the top of the western vertical face of the drain would have been obvious to any person (even sober) taking care for his or her safety while walking towards it through Endeavour Park in daylight, but not at night; and that a sober person walking through the park at night, taking reasonable care for his or her own safety, would not have seen the wall.

However, the trial judge did not refer to the impugned representation.

On Appeal, the New South Wales Court of Appeal accepted the submission that, without the evidence provided by the ambulance record, the plaintiff would fail in establishing causation.

On examination of the evidence, the Court of Appeal ruled in favour of the plaintiff, and found that the records were admissible according to the statutory exception to the hearsay evidence rule found in s.78 of the EA.

The Council then appealed to the High Court.


French CJ, Heydon and Bell JJ (the majority) found the case raised two groups of issues they described as “difficult”.

The first was whether the notation made by the paramedic, without evidence being given by that person, was admissible at all.

The second issue was, even if it was admissible, was that note (either alone or in combination) enough to establish causation.

The majority decided that it was not admissible and that it would not have been enough, anyway, to establish causation.

S. 78 of the EA allowed the admissibility of opinion evidence where it was necessary to understand a witnesses’ account of events.

Essentially, the majority thought that the exception to the hearsay rule had been broadly interpreted, and that, as a matter of statutory construction, opinions of this type should be inadmissible except where they were formed from direct perception of the incident.

In ruling the ambulance records representations inadmissible, and allowing the Appeal, the majority commented, in obiter, that, even with such evidence, the Courts had been too liberal in finding causation satisfied and that they failed to form an appreciation of the evidence piece by piece.


The majority judgment merely demonstrates the need for diligent liability investigations during the pre litigation stage of a claim; principally that one cannot rely on evidence from records alone in order to satisfy causation.

All witnesses must be proofed at an early stage, and statements taken and signed, with a view to calling those persons at the trial to give credence to any note or record which one seeks to rely upon.