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Barker v Gifford

Barker v Gifford

Case [2005] ACTSC 55 15 July 2005

Admissibility of Evidence

Civil Litigation & Procedure

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COLLEEN MICHELLE BARKER v LANCE EDWARD GIFFORD and JOHN
W TAGELL [2005] ACTSC 55 (15 July 2005)

PROCEDURE – pleading – application to strike out portions of defence as inconsistent with earlier admission.
EVIDENCE – admission before action – admission by defendant’s insurer – circumstances in which admission may be withdrawn.

Motor Accidents Compensation Act 1999 (NSW), s 81
Evidence Act 1995 (Cth), s 144

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Reinicke v Neilson [2004] ACTSC 5 (Master Harper, 27 February 2004, unreported)
Wyer v Hunt [2005] ACTSC 15 (Master Harper, 11 March 2005, unreported)
Celestino v Celestino (Spender, Miles and von Doussa JJ, Federal Court of Australia,
16 August 1990, unreported)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Drabsch v Switzerland General Insurance Co Ltd (Santow J, Supreme Court of NSW,
16 October 1996, unreported)
Ness v Graffen (2003) 60 NSWLR 549

No. SC 514 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 15 July 2005

IN THE SUPREME COURT OF THE       )
  )          No. SC 514 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:COLLEEN MICHELLE BARKER
Plaintiff

AND:LANCE EDWARD GIFFORD
1^st Defendant

AND:JOHN W TAGELL
2^nd Defendant

ORDER

Judge:  Master Harper
Date:  15 July 2005
Place:  Canberra

THE COURT ORDERS THAT:

The defence be struck out.

The defendants have 21 days to deliver an amended defence.

The defendants pay the plaintiff’s costs of this application.

This is an application by the plaintiff in an action for damages for personal injury arising out of a motor vehicle collision, for an order that specified paragraphs of the defence be struck out. In essence, the orders, if made, would prevent the defendants from denying negligence or alleging contributory negligence on the part of the plaintiff. The basis of the application is that before action, the defendants through their insurer admitted liability. The plaintiff submits that they should not be permitted to withdraw that admission.

The collision occurred at about 8.20 am on 10 June 2000 on the Gundaroo Bridge on the Gundaroo-Sutton Road in New South Wales. The road runs generally north-south, but the bridge itself, a single-lane timber structure of some antiquity over the Yass River, runs east-west. The first defendant was driving a large truck owned by the second defendant, carrying a heavy load of sand, from Canberra to Gundaroo. He was thus travelling east at the time of the collision.

10 June 2000 was the Saturday of the Queen’s Birthday weekend, and the plaintiff, who lived at Cullerin, north of Gundaroo, had been called in to work with the statutory authority where she was employed in Canberra. At the time of the collision she was travelling west.

Police from Collector prepared a report in relation to the collision, a copy of which was sent to the plaintiff’s solicitors in November 2000.

The entitlement of injured persons to damages arising out of motor vehicle collisions in New South Wales is governed by the Motor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barker v Gifford

Details

AGLC: Barker v Gifford [2005] ACTSC 55
Case: [2005] ACTSC 55
Decision Date

CaseChat Overview and Summary

Barker v Gifford is an action for damages for personal injury arising from a motor vehicle collision. The plaintiff seeks to strike out portions of the defence that are inconsistent with an admission of liability made by the defendants' insurer before action. The collision occurred on 10 June 2000 at about 8.20 am on the Gundaroo Bridge on the Gundaroo-Sutton Road in New South Wales. The first defendant, driving a truck owned by the second defendant, was travelling east towards Gundaroo. The plaintiff was travelling west, and the two vehicles collided. The plaintiff relies upon a letter sent by the insurer on 4 September 2001, which admits liability on the part of the first defendant, and denies any contributory negligence on the part of the plaintiff. The defendants now seek to withdraw that admission, and allege contributory negligence on the part of the plaintiff. The central issue is whether the insurer is entitled to withdraw its admission of liability. The court noted that the admission was made by the insurer after consideration of a detailed investigation report, which included signed statements by the plaintiff and by the first defendant, and photographs of the scene. The admission was a clear and distinct one which was accepted by the plaintiff. The court was satisfied that it was made by the insurer after due deliberation by a claims officer with responsibility for the matter and authority to make it, who was aware of the matters that ought to be taken into account in arriving at such a decision. The admission was made with deliberateness and formality. It is clear that the plaintiff's solicitors relied on the admission and did not pursue answers to interrogatories, or take any steps to marshal evidence to prove the plaintiff's case on liability. The court was entitled to assume that the plaintiff would suffer prejudice in the proof of his case if after an extended period an admission of liability were permitted to be withdrawn. The court held that the defendants should be struck out, and that the defendants have 21 days to deliver an amended defence. The defendants pay the plaintiff’s costs of this application.

Orders