Lithgow City Council v Jackson: Permissibility of lay opinion evidence narrowed

The High Court has today 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) is limited to the purpose of “permit[ing ] [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.” (French CJ, Heydon and Bell JJ at 48).

The disputed evidence was an ambulance record containing the representation “Fall from 1.5 metres onto concrete”, taken as opinion evidence that the respondent, Craig Jackson, had fallen from a  vertical retaining wall in a local park. Liability for Mr Jackson’s injuries was dependent upon the admissibility of the lay opinion evidence.

Ultimately, the court ruled the evidence inadmissible, stating that:

Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78.    

An example of an exception to the opinion rule being:

Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness's perception of the sobriety, age or emotional state being observed.

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