In its simplest form, a quantum statement briefly and accurately sets out a Plaintiff’s important antecedents, ie, his pre accident educational, health and working history, a description of the injuries sustained and the aches and pains caused by those injuries and its consequent effect upon the Plaintiff’s post accident health and income. Plaintiffs gain comfort from a quantum statement insofar as when they are approaching the daunting task of giving evidence in Court they will not be subject to a memory test for dates, times, facts and figures. Plaintiff’s lawyers like quantum statements. They are comprehensive and save many hours of oral testimony. Defence lawyers do not seem to fancy them and sometimes bring objection to them.
The practice of using a quantum statement in a personal injury case seems to have evolved from the trials heard before the greater northern Judge Sir George Kneip. The practice was adopted and utilised by the current northern Judge, the current far northern Judge and, with one exception, the last three central Judges.
Quantum statements are tenderable as of right under section 92(1)(a) of the Evidence Act. Section 92(1)(a) of the Evidence Act provides as follows:-
“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 and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if-
(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; …”
There are useful and extensive annotations on section 92 in Evidence in Queensland1 Forbes however it is necessary only to refer to paragraph 92.13 of Dr Forbes’ text where the learned author says:-
“The point of the opening words is that section 92 is a dispensation from the hearsay rule only, and not a dispensation from other rules of evidence. Obviously it is not a release from the discipline of relevance. It does not allow evidence to be given in defiance of rules of privilege or of the rule against “character” evidence. Further, the material must not be an opinion which the “source” would not be qualified to express in person.”
A common objection to the use of a quantum statement is that it represents leading par excellence. The objection is that, as a quantum statement is an example of leading a witness, then it does not satisfy the opening words of section 92 “where direct oral evidence of a fact would be admissible”. In several cases in which I have been involved where this objection is made it has always been overruled by the trial Judge, and rightly so, as the objection is nonsense. The objection is usually put as a precursor to an application under section 98 of the Act.
The usual basis for a Defence objection to section 98 is the discretionary objection of evidence provided in section 98 of the Evidence Act. Section 98 provides as follows:-
“[98.1] The Court may in its discretion reject any statement notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.”
On its face, section 98 is a broad discretionary provision which allows a Judge great latitude as to whether or not to admit a quantum statement under section 92. I would however respectfully agree with the sentiments of Dr Forbes in paragraph 98.4 of his text where the learned author says:-
“[98.4] However, when s 98 is invoked, it should be remembered that Pt 6 is remedial legislation. … When a Court uses s 98 it should condescend to give reasons. … Judges who think that Pt 6 is too liberal should resist the temptation to “repeal” it by an over enthusiastic use of s 98. It is hardly a sufficient reason for applying s 98 that “no testimony is be considered as [sic] against the interests of a party unless that party has had an opportunity of … cross examination” or that the evidence relates to a “central issue”. If that were the case, how many Part 6 documents would escape exclusion? The Queensland Court of Appeal has seen fit to warn against over reliance on s 98 where s 93A statements are concerned.”
Allied with the usual section 98 application of the defendant is submission under section 102 of the Evidence Act that, should a quantum statement be admitted, slight weight should be attached to it. Once again, Dr Forbes provides usual guidance on his text where he says at paragraph 102.3:-
“[102.3] Unfortunately your most unfettered power to determine “weight” may be used as a covert alternative to s 98, above, or s 130, below, in defeasance of Pt VI or other rules of evidence, and the facts can be “found” so as to avoid unwanted results or difficult points of law. Lawyers, particularly the junior or uninfluential, may be induced to abandon valid points of evidence by judges sitting alone, who calculate that an appeal is unlikely. There is a certain tension between maintaining good relations with the Bench and the interests of a client who may never be seen again. This anecdote in a barristers’ newsletter may not be entirely facetious or purely a apocryphal:
“Smart of Counsel: Your Honour, I tender the signed statement under s 92 of the Evidence Act.
Bullingham J: Do you mean to tell me that you can tender an unsworn document instead of calling the witness?
Smart: Yes, if the conditions of s 92 are satisfied, as (in my submission) they clearly are in this case.
Bullingham J (muttering to self): Well it may be admissible, as you say, but I do not regard it as having any value. You had better tender as paperweight s well.”
Nowadays evidence in chief is the usual mode of giving evidence in the Federal Court and in the Family Court and in many other jurisdictions. In personal injury case the advent of UCPR 547 ,the requirement for a detailed Statement of Loss and Damage, necessarily relieves a defendant of all surprises that may see in a quantum statement. Indeed, it is fairly arguable that there is great advantage to the defendant in having a quantum statement to look for another inconsistency between a case previously disclosed in the Statement of Loss and Damage and to medical practitioners. Conversely, a significant disadvantage to a Plaintiff is that in that it takes away the ability of a plaintiff to tell their own story in their own words which can usually have a far more powerful effect on a trial Judge than the simple reading of a document.
Judgment therefore needs to be exercised as to the use and extent of any quantum statement. Furthermore, if they are to be used, they need to be disclosed at least one full day prior to trial to enable cross examining Counsel to carefully consider the statement. In my experience, any quantum statement disclosed just moments before the trial begins tends to irritate the trial Judge as a defence Counsel is entitled to, and should, insist on an adjournment to carefully consider the document.
Graeme Crow
Footnote
- Forbes
