East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic

(2019) 54 WAR 40; [2019] WASCA 18

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Rule against hearsay
3. › Implied assertions
4. › Extent to which hearsay rule excludes evidence of implied assertions
5. › Whether evidence of what person told witness, and did not tell witness, about prior conversation admissible to prove content of that conversation
6. › Whether conduct has character of subjective assertion or objective event
1. Evidence
2. › Rule against hearsay
3. › Implied assertions
4. › Distinction between evidence tendered as relevant fact and evidence tendered to prove truth of implied assertion
5. › Whether inference from conduct involves reasoning from person's knowledge of fact to existence of that fact
1. Tort
2. › Negligence
3. › Medical negligence
4. › Breach of duty
5. › Whether inference should be drawn that medical practitioner failed to give appropriate advice
6. › Circumstantial case
7. › Onus of proof
1. Tort
2. › Negligence
3. › Medical negligence
4. › Causation
5. › Whether delay in hospital attendance caused harm
6. › Speculative counterfactual scenarios
7. › Whether patient would have received earlier treatment

Quick Take

Where evidence of a person's conduct (including what they said and did not say) is led to support an inference, the hearsay rule precludes reasoning from that person's knowledge of a fact to the existence of that fact. The question of whether the hearsay rule applies to implied assertions involves characterisation: whether the conduct has the character of a subjective assertion involving knowledge or belief, or of an objective event. The plurality approach in Walton v The Queen, not Mason CJ's balancing approach, governs this characterisation. In medical negligence cases, a circumstantial case that a practitioner failed to give advice must overcome the onus of proof, and an appellate court will not interfere with a trial judge's choice between competing inferences unless the choice was one the trial judge should not have made.