Alternative Law Journal
Opposing views on the application of the doctrine of judicial notice on appeal.
On 12 March 1996 Michael Woods was playing indoor cricket at a facility owned and operated by Multi-Sport Holdings Pty Ltd. Although he had played outdoor cricket for years, it was only his second game of indoor cricket. For a fee Multi-Sport provided the venue, the equipment required to play, and an umpire. During his innings Woods attempted a ‘pull-shot’ by striking the ball with the edge of the bat, it ricocheted into his right eye, resulting in almost complete blindness in that eye. He initiated an action in the District Court of Western Australia to recover damages for loss of vision and loss of earning capacity.
Woods claimed that Multi-Sport breached a duty of care owed to him. The existence of a duty of care was never in dispute; as organiser and controller of the games played at its facility, Multi-Sport had a duty under the Occupiers Liability Act 1985 (WA) (OLA) and a wider duty to take reasonable steps to avoid the risk of injury to players arising from the dangers involved in playing indoor cricket. The primary issues at trial and on appeal concerned the content of the duty and whether it had been breached.
The trial judge accepted that Multi-Sport owed Woods a duty of care but failed to find any breach of that duty. The Full Court of the Supreme Court upheld the trial judge’s decision. Woods then appealed to the High Court where he contended that Multi-Sport should have made available to him suitable equipment — namely a helmet with an eye guard — and should have displayed a suitable warning sign to alert players to the particular dangers of indoor cricket. Further issues that were presented for determination by the Court were whether the failure to provide these measures would have materially contributed to Woods’ injuries and whether Multi-Sport was exempted from liability because Woods had voluntarily assumed the risk of injury.
Gleeson CJ, Hayne and Callinan JJ dismissed the appeal. McHugh and Kirby JJ found in favour of Woods. In dismissing the appeal the majority found that the practice of playing indoor cricket without a helmet did not involve an unreasonable disregard for safety on anybody’s part. It did not consider that in these circumstances, where being hit on any part of the body including the head, was an obvious risk, that there was any duty to warn of the specific risk of serious eye injury. The Full Court had not erred in upholding the trial judge’s conclusion. The question arising as to the defence of volenti was not finally determined by the majority. The potential scope of the volenti defence preserved in s.5(2) of the OLA is not discussed in this article, and is worthy of discrete comment as an issue in itself. An intriguing aspect of the judgment are the opposing views expressed by McHugh and Callinan JJ about the use of statistics. This divergence of judicial opinion poses an important question: what is properly the subject of judicial notice?
The general rule is that all facts in issue or relevant to the issue in a given case must be proved by evidence, testimony, admissible hearsay, documents, things or relevant facts. Two exceptions to the rule are that no evidence is required of facts that are formally admitted by the parties or of which judicial notice is taken. When judicial notice is taken of a fact, the court declares that a fact exists notwithstanding that specific evidence of that fact has not been tendered. In the High Court, the doctrine has been far less frequently employed in its appellate jurisdiction than in its original jurisdiction, as appeals are conducted on the material facts that have been found at trial.
Even at special leave stage, the transcript reveals that the subject of judicial notice was of general interest to certain members of the bench. Kirby J raised the issue of judicial notice, not with respect to the use of statistics, but in the context of the frequency of injuries with a view to satisfying the public importance test for leave under the Judiciary Act 1903 (Cth):
KIRBY J: Can we take judicial notice of the fact that there are these internal cricket and squash courts all around the nation, that the two [eye injuries from indoor cricket] a year in Perth is not limited to Perth?
McHUGH J: There is evidence in this case that the number in Perth alone is …
KIRBY J: Yes, but I am talking about the common law throughout Australia. This is a problem that is presented to us in the context of Perth that would have implications for other parts of Australia.
The issue of judicial notice was again raised by McHugh J in the actual appeal in the context of the frequency of injuries caused by helmets in collisions between players:
McHUGH J: What is the basis of her Honour’s statement at 511, line 2?
‘While the injuries sustained in a collision may not generally be as serious as an eye injury the frequency is certainly likely to be much higher.’ Is that a matter of which she has taken judicial notice? Or is there evidence to that …
In neither instance was the issue of judicial notice pursued by the Court during counsel’s oral argument. Nevertheless McHugh J took judicial notice of the Australian Bureau of Statistics National Health Survey: Injuries, Australia (the ABS statistics) in relation to injuries suffered in Australia. What is not clear from the judgment is how the ABS statistics came to be introduced. Enquiries of counsel reveal that despite objection, the trial judge received into evidence the ‘Lions Save-Sight Foundation WA Inc — Report on Sport Related Eye Injury Register’ (the Lions report). However, neither this evidence nor the issue of what statistical facts judicial notice may be taken were raised by counsel in oral argument before the High Court (although reference was made to the judicial notice point in Multi-Sport’s written submissions).
In his reasons for judgment, McHugh J was concerned with the cost of accidents to Australian society. He referred to a report on the costs of the health system for the years 1993–1994 showing the direct health system costs of injury and poisoning amounted to $2601 million. According to the ABS statistics for 1995, 2.8 million Australians (16% of the population) had a current injury or injury-related condition. This represented 18% of all people with a medical condition. The same survey showed that in 1995, 228,800 people ‘with a current injury or injury-related condition had been injured most recently due to a sport or recreation-related activity in the month prior to interview’. McHugh J examined the law of judicial notice and found it was legitimate and in accordance with long-standing authority and practice to refer to these statistics and rely on them.
McHugh J adopted the categorisation of judicially noticeable facts found in Cross on Evidence, that is, facts that may be the subject of judicial notice fall into two categories: adjudicative facts which are facts in issue or a fact relevant to a fact in issue; and legislative facts which assist a court in determining the content of law and policy and to exercise its discretion or judgment in determining what course of action to take. McHugh J said that in contrast with adjudicative facts — which always relate to the issues between the parties — legislative facts generally relate to the law-making function of the judicial process. He found that the statistics fell into the class of legislative facts that a court may judicially notice and use to define the scope or validity of a principle or rule of law as they were matters that are not particular to the parties and assist in defining the content of the principles that govern this case and others like it. In his Honour’s view, the relevant principle in this case was the rising standard of care. How the ABS statistics were relevant to the question to be determined by the Court or the development of the principle of law in question (particularly when the standard of care owed by Multi-Sport to Woods was a question of fact) is not made clear.
In his judgment, Callinan J was critical of McHugh J’s use of the ABS statistics. He commented that the courts must exercise great caution in taking judicial notice of anything. A fact may only be judicially noticed when it is so generally known that every ordinary person may be reasonably presumed to be aware of it. The Court notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.
His Honour was of the view that resort to ABS statistics was not only impermissible but also unhelpful. Among other things he criticised the reliability of the ABS statistics in light of the relatively low percentage of injured people involved and the vagueness of the expressions ‘due to a sport or recreation-related activity’ and ‘recreation-related’. In essence, he observed that the ABS statistics could hardly be described as incontrovertible. Callinan J stated that the same degree of caution is required when the extrinsic facts are legislative facts. However, the statistics in question did not fall into any of the categories of material that might properly influence the outcome of this appeal, or other cases. Nor were they statistics going to the establishment of what has become a conventional statutory yardstick and a truly notorious fact, the Consumer Price Index. Neither was there any statutory basis for their reception. The statistics were not given in evidence at the trial and in Callinan J’s opinion they would not have been admissible had their tender been sought; they were irrelevant to the matters in issue before the Court and even if they were relevant, they would still constitute evidence. His Honour observed that the High Court will not receive evidence in the exercise of its appellate jurisdiction. It would be unfair and unsatisfactory for a party to learn, after the event and for the first time, that it had lost because the Court resorted to extrinsic, allegedly notorious facts with which it had no opportunity to deal.
In the light of the way judicial notice is characterised as an exception to the general rule that all facts in issue must be proved, what did Callinan J mean in saying that the High Court will not receive evidence in the exercise of its appellate jurisdiction? In Mickelberg v The Queen  HCA 35; [1988-1989] 167 CLR 259 the High Court held that on an appeal under s.73 of the Constitution from the decision of a state court exercising state jurisdiction it had no power to receive fresh evidence that the applicants sought to adduce. Mason CJ said that the authorities stood clearly for the proposition that the reception of fresh evidence is not part of the appellate jurisdiction of the High Court. Underlying the authority are two propositions. First, an appellate court, in hearing an appeal, is called on to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials that were before the court below. Secondly, s.73 of the Constitution, in conferring appellate jurisdiction on the High Court, contains nothing to suggest that the Court is to go beyond the jurisdiction or capacity of the court appealed from.
Accordingly, the notion that the correctness of the decision of the court appealed from can be determined by reference to materials not before that court is inconsistent not only with the appellate nature of the jurisdiction exercised by the High Court but with the fact that it is the final avenue of appeal. Parties must demonstrate exceptional circumstances if the High Court is to grant special leave to appeal when the point relied on was not taken at trial or in an intermediate appellate court. Equally a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below. Yet, if facts are judicially noticeable then, as notorious facts, they are assumed to have always been in evidence. Callinan J’s objection may be more appropriately framed as a natural justice objection, which underscores the need for caution in the resort to judicial notice of facts and the need to provide litigants with the opportunity to make submissions to the court about the use of facts or their relevance and to have the court resolve issues that the parties define and choose to test adversarily.
Multi-Sport had no opportunity to explain, distinguish or contradict the ABS statistics or make submissions in any court about their relevance. The ABS statistics did not provide a basis for the formulation of any policy or principle to apply to cases in which there is an allegation of negligence in the playing or conducting of sporting contests. Further, the courts had no opportunity to consider whether any cost-benefit analysis (which may or may not show an overall advantage to the community in terms of fitness, occupation of leisure time, and community health generally) of participation in sport might equal or outweigh the cost of the provision of health services to people injured playing sport.
Can it be fairly said that McHugh J’s observations reflect the reality of what the High Court has always done in terms of the development of law and policy? As the ultimate appellate court, the High Court’s resort to social statistics arguably may be considered an enlightened course for it to take in terms of pragmatism and expediency. The law-making function of the judiciary is a subject about which McHugh J has written extensively, recognising the High Court’s apparent and significant law-making role. However, Callinan J’s criticism of his application of the doctrine of judicial notice is not directed at the use of legislative facts in the sense of usurping the legislative function; rather, it is aimed at the uncertainty that this type of reasoning produces.
The Woods case leaves the High Court’s attitude to the application of the doctrine of judicial notice very much in doubt. The principles on which the Court will rely in taking judicial notice of facts on appeal is not made clear by this decision. The conservative view is that caution is the grounding feature of the recognition of this type of evidence by a court. In contrast, and consistent with his argument that the High Court should take a more active law-making role, McHugh J clearly favours a more robust approach. However, as judicial notice is an exception to the general rule that facts in issue must be proved, it is a doctrine at large and leaves the Court open to criticism. At the very least, the exercise of caution must involve the parties being afforded the opportunity to comment on the facts to be relied on by the Court.
[*] Megan Hoey is a Perth lawyer. I am indebted to Richard McCormack (Counsel for Multi-Sport) for his valuable assistance in the preparation of this article.email: firstname.lastname@example.org© 2002 Megan Hoey (text)© 2002 John Lynch (cartoon)
 Pepper, R., ‘Judicial Notice’ in T. Blackshield, M. Coper and G. Williams (eds), The Oxford Companion to the High Court of Australia, (2001) Oxford University Press, pp.370-1.
 Holland v Jones  HCA 26; (1917) 23 CLR 149 per Isaacs J at 153.
 This article does not address statutes in Australian states (Evidence Act 1929 (SA) s.64; Evidence Act 1910 (Tas) s.67; Evidence Act 1906 (WA) s.72 and see also Evidence Act 1995 (NSW) s.144 and Evidence Act 1995 (Cth) s.144), which enable courts to refer to certain published works considered to be of authority in matters of public history, literature, science or art.
 McHugh AC, The Hon Justice M.H., ‘Law Making in an Intermediate Appellate Court: the New South Wales Court of Appeal’ SydLawRw 1; , (1987) 11(2) Sydney Law Review 183-8 where his Honour discusses whether or not judicial law making should be the prerogative of the ultimate court of appeal; McHugh AC, The Hon Justice M.H., ‘The Law-making Function of the Judicial Process — Part 1’, (1988) 62 ALJ 15-31; McHugh AC, The Hon Justice M.H., ‘The Law-making Function of the Judicial Process — Part 2’, (1988) 62 ALJ 11-127; McHugh AC, The Hon Justice M.H., ‘The Judicial Method’, (1999) 73 ALJ 37-51.