Brown v GIO General Limited

[2013] NSWCA 34

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brown v GIO General Limited [2013] NSWCA 34

Hearing dates:

20 February 2013

Decision date:

20 February 2013

Before:

Beazley JA (at [1] and [14]); Barrett JA (at [2])

Decision:

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal dismissed - no issue of principle

Legislation Cited:

Evidence Act 1995, s 136

Cases Cited:

Dasreef Pty Ltd v Hawchar [2011] 21 HCA; (2011) 243 CLR 588

Category:

Interlocutory applications

Parties:

Rachel Jane Brown - Applicant
GIO General Limited - Respondent

Representation:

I D M Roberts SC - Applicant
K Manion - Respondent
Walsh & Blair Lawyers - Applicants
Grace Lawyers Pty Limited - Respondent

File Number(s):

2012/319878

 Decision under appeal 

Date of Decision:

2012-09-20 00:00:00

Before:

Delaney DCJ

File Number(s):

2011/61564

Judgment

1. BEAZLEY JA: I will ask Barrett JA to deliver the judgment of the Court.

1. BARRETT JA: The applicant for leave to appeal was the unsuccessful plaintiff in a District Court action against GIO under an insurance policy.

1. The applicant's case below was that certain damage to her house was storm damage and that her policy with GIO covered the cost of repair. The judge held that the plaintiff had not discharged the onus of proving on the balance of probabilities that mould on the interior of the house resulted from storm damage. He said that proof of this required expert evidence from a qualified person.

1. A builder and roof plumber retained by the plaintiff had provided her with a quotation for repair work in which he referred to water damage through the entire ceiling space and to "Super Six roofing laps leaking due to storm damage, and cracking has occurred on ridges and aprons".

1. The judge said of this document and of a statement of GIO's assessor:

"Neither of these documents were expert reports. The documents were admitted for limited purposes."

1. The applicant takes issue with the judge's statement that the document from the builder was admitted only for some limited purpose; and it may be accepted that there was no limiting order under s 136 of the Evidence Act1995 and nothing else that would have served to limit the use to which the document and the content of it could be put.

1. The question of admissibility of the builder's opinion does not arise since there was no objection to the tender of his document. The real question goes to weight to be given to the builder's stated opinion that the water damage was "due to storm damage".

1. GIO took the point at trial that the opinion, although in evidence (since the document was tendered without objection), was of no use to the Court. Reference was made in final submissions to well-known case law and to the fact that the builder's statement gave no inkling as to how he had formed his opinion about the cause of the damp and mould. Also there was nothing by way of reasoned explanation of how the opinion was wholly or substantially based on the builder's specialised knowledge.

1. The judge noted when discussing the builder's document that there was no evidence of the cause of the damage whether by rain, wind, hail or otherwise, or when it happened.

1. The conditions necessary to be satisfied to make the builder's opinion deserving of any probative weight as most recently discussed by the High Court in Dasreef Pty Ltd v Hawchar [2011] 21 HCA; (2011) 243 CLR 588 were not satisfied and the judge was correct to discount the builder's opinion in the way he did. While the immediately stated reason for doing so referred erroneously to an order limiting use, the reasons as a whole are consistent with recognition of the fundamental problem of lack of stated or explained foundation for the opinion and therefore a need for it to be given no weight.

1. The applicant also takes issue with the judge's statement that there was no evidence of high wind, lightning, hail or snow in the period August 2009 to March 2010. The applicant points in that connection to the builder's statement and to the fact that the applicant's tenant told her of recent storm activity. The applicant herself does not live in the vicinity of the house.

1. The evidentiary value of the builder's report has already been dealt with. Evidence of what the tenant reported to the applicant about weather conditions at the location of the house in the relevant period would obviously be excluded by the hearsay rule on any attempt to prove the matters stated by the tenant.

1. The foreshadowed grounds of appeal go wholly to issues concerning admissibility and weight of evidence. For reasons stated, the contention that the judge erred materially in that respect must fail so that any appeal would have no real prospects of success. The application for leave to appeal should be dismissed with costs.

1. BEAZLEY JA: That is the order of the Court.

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Decision last updated: 26 February 2013