Sexton v Homer
[2013] NSWCA 414
•05 December 2013
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Sexton v Homer [2013] NSWCA 414 Hearing dates: 26 July 2013 Decision date: 05 December 2013 Before: Basten JA;
Leeming JA;
Garling JDecision: (1) Allow the appeal and set aside the orders made in the District Court.
(2) Direct that there be a new trial of the plaintiff's claim.
(3) Direct that the costs of the first trial be in the discretion of the judge presiding at the new trial.
(4) Order that the respondent pay the appellant's costs of the appeal.
(5) Grant the respondent a certificate under Suitors' Fund Act 1951 (NSW).
[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 - challenge to findings of fact - challenge to contingent finding of contributory negligence - retrial required
EVIDENCE - client legal privilege - whether statement of defendant obtained by investigator for use by insurer is privileged - whether trial judge correctly assessed dominant purpose of statement - whether document a confidential communication - Evidence Act 1995 (NSW), ss 117, 118
NEGLIGENCE - motorcycle accident - damages agreed - whether question of liability was correctly determined - trial judge reasons do not record process of resolving disputed facts - erroneous fact-finding processLegislation Cited: Evidence Act 1995 (NSW), s 138
Motor Accidents Compensation Act 1999 (NSW), ss 117-119Cases Cited: Coote v Kelly [2013] NSWCA 357
Fox v Percy [2003] HCA 22; 214 CLR 118
Gaskin v Ollerenshaw [2012] NSWCA 33
Keith v Gal [2013] NSWCA 339
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702Category: Principal judgment Parties: Callum Sexton (Appellant)
Martin David Home (Respondent)Representation: Counsel:
D R Campbell SC / D R Toomey (Appellant)
Beston Macken McManis (Appellant)
P Deakin QC / A Davis (Respondent)
Solicitors:
Sparke Helmore (Respondent)
File Number(s): 2012/44462 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2012-02-01 00:00:00
- Before:
- Johnstone DCJ
- File Number(s):
- 2010/144211
Judgment
THE COURT: The appellant, Mr Callum Sexton, was badly injured in a motor vehicle accident on 16 May 2008, when he was riding his motorcycle south on Malinya Road, Davistown, and was struck by a motor car driven by the respondent, Mr Martin Homer at a T-intersection where Emora Avenue joined Malinya Road. It is convenient to refer to the appellant as "the plaintiff" and to the respondent as "the defendant".
On 9 June 2010, the plaintiff commenced proceedings claiming damages for the allegedly negligent driving of the defendant. As the plaintiff is a participant in the Lifetime Care and Support Scheme created by the Motor Accidents (Lifetime Care & Support) Act 2006 (NSW), his claim for damages is one of limited scope. By the time the hearing was completed, the parties had agreed on damages. On 1 February 2012, Johnstone DCJ gave judgment for the defendant. He ordered the plaintiff to pay the defendant's costs.
An outline of the Appeal
On 30 April 2012, the plaintiff filed a Notice of Appeal, containing 13 grounds. Ground 12 alleged that the trial judge had erred in determining a claim for client legal privilege. As this deals with a question of evidence, it would be logical to deal with it first. However, the Court is satisfied that the challenge to the factual findings require that the appeal be allowed, but that the ruling on evidence was correct. In these circumstances, it is preferable to address the factual issues first and turn to ground 12 at the end.
Ground 8 was abandoned. Ground 13 dealt with a finding, contingently made despite the finding of no liability, as to the degree of contributory negligence. This finding will be addressed briefly at the end of this judgment. The remaining grounds dealt with findings of fact. In outline these grounds addressed:
(a) the clothing being worn by the plaintiff at the time of the accident (Grounds 1, 5 and 6);
(b) the state of the ambient light at the time of the accident (Grounds 3 and 4);
(c) the noise and audibility of the plaintiff's motorcycle (Grounds 9, 10 and 11); and
(d) the visibility of the plaintiff to the defendant (Grounds 2 and 7).
Scope of the trial
The trial judge succinctly described the accident (at [3]):
"The collision occurred when the defendant was in the course of turning right from Malinya Road into Emora Avenue, across the oncoming lane. The plaintiff was riding his motorcycle south along Malinya Road, when it struck the left front section of the defendant's car with force and exploded."
At trial, the plaintiff alleged that the defendant was negligent because he failed to keep a proper lookout thereby failing to see the plaintiff as he was approaching the intersection; that he failed to listen attentively for other traffic, such as the plaintiff on his noisy motorcycle, so as to be warned of his presence on the road; and that he turned his car across the path of the oncoming motorcycle without indicating his intention to turn right.
The defendant denied negligence and denied that any conduct on his part caused the accident. The defendant's case was that at no time did he see the motorcycle prior to the collision and that this was not unreasonable in the circumstances because of the dark conditions at the time, the absence of any lights on the motorcycle and the dark clothes that the plaintiff was wearing. In addition, the defendant submitted that once he had commenced to make the right hand turn, which he did at a safe time having regard to the respective speeds at which the motorcycle and the car were travelling, there was no way he could have avoided the collision.
The plaintiff and the defendant each gave his account of what had occurred in the time leading up to the collision. There were a number of witnesses in the vicinity of the accident, although only one, Mr Stephen Sayers, actually saw the collision. Mr Sayers was jogging, with his son, in an easterly direction along the northern verge of Emora Avenue towards Malinya Road. Two women, Ms Wass, and Ms Monley, were walking dogs along Malinya Road, but were walking north on Malinya Road, away from the intersection, at the time of the collision. Whilst neither of them actually witnessed the collision, as they were walking they observed the plaintiff ride south along Malinya Road past them immediately prior to the accident.
An ambulance paramedic, Mr Jones, and a police officer, Constable Kennedy, arrived at the scene in the aftermath of the accident and gave evidence of their observations. The plaintiff's mother gave evidence about events at her house prior to the plaintiff leaving on his motorcycle, and as to her observations upon her arrival at the accident scene.
In addition to these primary witnesses of fact, there was photographic and documentary evidence collected by investigators at the accident scene, and from an expert in accident reconstruction.
Undisputed facts
There were a number of facts which were not in dispute. The plaintiff was riding an unregistered "Thumpstar" motorcycle with an 110cc engine, which is much smaller than a standard motorcycle. The motorcycle was not designed for general use on urban roads. It did not have a headlight, nor any other lights or reflectors. The plaintiff was not wearing a helmet.
Malinya Road is a two-way single lane bitumen suburban street. In the vicinity of the accident, it travelled in a generally north/south direction along a flat straight section. Emora Avenue entered from the eastern side of Malinya Road. There was a concrete splitter median strip in Emora Avenue at the intersection. The speed limit for both roads was 50kph.
The defendant's motor car was an automatic 1990 Holden Commodore. The defendant was travelling north in Malinya Road, on the western side of the road. He was turning east into Emora Avenue, which necessitated him slowing and crossing the eastern lane in which the plaintiff's motorcycle was travelling south, towards him. The Holden Commodore had modifications to the muffler, which meant that it was louder than usual especially during deceleration. (This was not said to be an illegal modification.)
Although speed was initially an issue in the proceedings, there is no challenge to the trial judge's finding. The likely approach speed for the plaintiff's motorcycle was at, or perhaps slightly over, 50kph. The defendant's turning speed, after he had slowed down as he approached the intersection, was 15kph.
The collision occurred shortly before 5.42pm, that being the time at which the first call to the ambulance service was logged. The sun set at 5.02pm. Civil twilight had occurred at 5.29pm; nautical twilight was at 5.59pm.
The facts in issue
The plaintiff's said he was wearing a yellow fluoro high-visibility work-shirt at the time of the accident. The trial judge rejected that evidence because:
(a) the description of the plaintiff's clothing given by Ms Wass and Ms Monley was not of a high-visibility yellow fluoro work-shirt;
(b) no-one who was at or went to the scene of the accident saw the plaintiff wearing a yellow fluoro work-shirt; and
(c) the plaintiff's mother's evidence on this subject was unreliable because she had no real idea how the plaintiff was dressed when he left the house.
The trial judge also held that the clothing the plaintiff was wearing was, in any event, irrelevant.
There was a significant dispute as to the state of the ambient light at the time of the accident. The trial judge found that it was particularly dark, so that visibility was quite limited. He acknowledged that Ms Wass had said of the visibility generally that she could see about 50 metres ahead. However, the trial judge noted that other witnesses had trouble seeing what was happening. The trial judge specifically noted (and seemingly relied upon) the evidence of Mr Sayers, who said that he did not see the plaintiff's motorcycle before the collision and that, immediately prior to the accident, he had trouble seeing a puddle into which he stepped whilst jogging.
The trial judge noted that the defendant did not see the plaintiff on his motorcycle at all; that Ms Wass did not pick up the motorcycle until it was 5 to 6 metres away and that Ms Monley was only able to locate the motorcycle when it was practically upon them. His Honour based his finding on this evidence.
On the question of the audibility of the plaintiff's motorcycle, it seems that the trial judge accepted that the motorcycle was "noisy". However, he was not persuaded that the noise of the motorcycle, which was heard by Ms Monley but not by Mr Sayers, was sufficient to enable the defendant to locate the motorcycle. Accordingly, the judge concluded that the noise, even if the defendant had heard it, was not sufficient to warn the defendant as to its source, the location of the motorcycle, or the motorcycle's intended path of travel.
The visibility of the plaintiff to the defendant at the time he commenced his turn, was an important and disputed fact. The trial judge accepted the defendant's evidence that he did not see the plaintiff or the motorcycle prior to commencing his right-hand turn into Emora Avenue. He further found that there was no lack of reasonable care on the part of the defendant in that regard.
The judge had regard to a number of factors in reaching that conclusion. The first and most important factor was that it was particularly dark at and near the intersection at the time of the collision, so that the defendant's vision was limited. Secondly, the defendant had his headlights on low-beam, which meant that the headlights illuminated a shorter distance than might otherwise have been the case. Thirdly, to the extent that any noise may have been capable of being detected, it was insufficient to assist the defendant as to where to look for the motorcycle. Fourthly, the clothing being worn by the plaintiff was not a high visibility work-shirt but was dark in colour. Finally, the plaintiff's motorcycle did not have a headlight or any other lights on it.
An additional dispute at the trial was whether the defendant had engaged his right-turn indicator prior to commencing the right-hand turn into Emora Avenue. His Honour found that the plaintiff had done so well prior to commencing the turn. This finding was not challenged.
Against the background of these findings of fact, the trial judge expressed his conclusion that the defendant was not negligent, in this way:
"95. I have also rejected the plaintiff's case insofar as it relies upon the propositions that the defendant was wearing a high visibility yellow fluoro worktop, and that the defendant's headlights were on high-beam.
96. Having applied his right turn indicator, he [the defendant] slowed down and checked for oncoming vehicles before commencing to turn. He thereafter directed his attention to the turn, including negotiating his vehicle around the low cement splitter island in the centre of the entrance to Emora Avenue, and satisfying himself that there were no vehicles or pedestrians in his path on that street. In so doing, he acted in accordance with the way a reasonable person in his position would have acted and no other precautions were called for in the circumstances as I have found them.
...
98. The defendant did not fail to keep a proper lookout. I do not accept the submission that he was paying little or no attention to the road or his driving generally. I reject the proposition that he was not looking ahead, or that he only made a cursory look at things ahead of him ...
99. I am satisfied that the plaintiff was riding a dark coloured motorcycle without lights or reflectors, and he was wearing dark clothes, at a speed of at least 50kph, probably more, in dark conditions, such that he was never visible to the defendant and could not have been seen at the time he commenced to turn, and there was [there-]after insufficient time for the defendant to have reacted in time to avoid a collision, even if he had looked along Malinya Road, rather than directing his attention to the turn into Emora Avenue.
100. ... To the extent that the plaintiff and his motorcycle may have entered the area illuminated by the headlights of the defendant's car in the course of making the turn, it would have simply been too late for the defendant to have taken any effective evasive action."
The last statement addressed the issue of causation, which on the findings of fact, was not established.
The state of ambient light (Grounds 3 & 4)
The trial judge regarded the state of ambient light as being the central and most important issue. It is convenient to commence a consideration of the factual grounds with those which challenge this finding.
It is always difficult to be precise about any description of darkness during the evening twilight period: darkness is relative. There was no issue that the accident occurred shortly before 5.42pm. That was the time when the first call to the ambulance service was logged. The evidence showed that the sun had set more than half an hour before, at 5.02pm. His Honour found that civil twilight had occurred at 5.29pm. He accepted that the defendant had his headlights on. The only issue in dispute on that matter was whether the headlights were on low-beam or high-beam. His Honour found that they were on low-beam: there was no challenge to that finding.
On this critical factual issue, the whole of the trial judge's reasoning was as follows:
"70. The collision between the plaintiff's motorcycle and the defendant's car occurred sometime after 5:30pm, more probably than [not] at about 5.42pm. The evidence was that the call to the ambulance service was logged at that time. The sun had set more than half an hour before, at 5.02pm. Civil twilight had occurred at 5.29pm and it was either dark conditions or getting dark.
71. The state of darkness was described by the various witnesses, some of which evidence I have referred to above. In the plaintiff's favour was the evidence of Miss Wass that she could only see about 50 metres ahead. All the other evidence, however, suggests that it was particularly dark, such that visibility was quite limited. Mr Sayers, for example, did not even see the motorcycle before the collision, and had trouble locating the puddle he had stepped in.
72. The defendant said he never saw the plaintiff or his motorcycle.
73. More importantly, however, was the evidence of Miss Wass that she did not pick the motorcycle up until it was 5-6 metres away, and of Ms Monley that she was only able to locate the motorcycle when it was practically upon them.
74. I am therefore satisfied that, irrespective of the clothing the plaintiff might have been wearing and having regard to the speed at which the plaintiff was travelling, he and his motorcycle were not visible to the defendant prior to making the turn into Emora Avenue."
Paragraph [70] was uncontroversial, so far as it went, although the closing words "either dark conditions or getting dark" merely restate the issue. The paragraph did not refer to the unchallenged evidence that on the day of the accident, nautical twilight occurred at 5.59pm, (about 20 minutes after the collision) at which time it was "dark for normal practical purposes".
Each of the remaining paragraphs discloses error. There was probative evidence inconsistent with his findings to which the trial judge did not refer, and the judge both misstated and failed to reconcile the evidence on which he relied.
First, as to [71], the ambulance paramedic (Mr Christopher Jones) who attended at the scene at around 5.54pm described light conditions as "dusk" and said that he could see houses and vehicles from across the street without the aid of artificial light. We would understand his reference to artificial light as being a term used to describe light introduced to the scene which was not normally there, such as vehicle headlights, to which he referred as being on as he left the scene. Mr Jones estimated 15 to 20 metres as the distance that could be seen when he arrived at the scene, which was over 10 minutes after the accident had occurred. During that period, the light would have been fading from civil to nautical twilight. Certainly, the light conditions were no worse at the time of the collision than when he arrived some short time later.
It cannot be doubted that the principal interest of Mr Jones was the treatment of the plaintiff, which would have engaged his close attention, and which may be a reason to treat his evidence carefully, but such consideration did not permit the trial judge to ignore it.
Secondly, the police officer, Constable James Kennedy, described conditions as "daylight going on dusk" when he arrived at the scene. Although the manner in which Constable Kennedy expressed that opinion was open to the criticism that he had reasoned his way to such a conclusion, rather than having an actual recollection of the ambient light conditions, he was not challenged on that evidence in cross-examination. In those circumstances, his evidence could not properly be ignored.
As well, although both men would have attended many accidents, their evidence might nevertheless be thought to be probative, because they were independent and trained to deal with traumatic incidents. In contrast, it was clear that the recollections of the plaintiff and the defendant were faulty, probably because of the traumatic nature of the accident and their injuries.
Further, the plaintiff's mother, Ms Sexton, gave evidence that it was "still light" when her son left home, which she said was a few minutes before the collision. The plaintiff himself said that he saw the defendant's car when it was "10, 15, 20 metres" away, that it was dusk and that he could be seen.
It was therefore wrong for his Honour to say that "All the other evidence, however, suggests that it was particularly dark, such that visibility was quite limited." The evidence of Mr Jones and Constable Kennedy was to the contrary, and prima facie, probative; his Honour appears, so far as the dispositive portion of his reasons discloses, to have failed to have regard to this evidence. The evidence of the plaintiff's mother was also to the contrary, and likewise inconsistent with his Honour's statement about the effect of the other evidence.
It was of course open to the trial judge to discount the evidence of those witnesses (particularly, that of the plaintiff and his mother), although, in the circumstances of the factual contest at this trial, it was desirable, to say the least, for his Honour to have done so expressly, given the importance of the issue.
Next, his Honour placed reliance on Mr Sayers not seeing the motorcycle before the collision. But Mr Sayers and his son were jogging along Emora Avenue, and Mr Sayers said they were paying attention to the defendant's car. Moreover, although Mr Sayers did say (in chief) that it "was a really dark night", such that he could not see the puddle, in cross-examination he gave evidence that:
"Q. [T]he lighting was okay at the time that you were in Emora Street, but of course it deteriorated later while you were waiting around at the scene following his accident.
A. Yeah, it would have got darker and darker.
Q. ... Whatever the state of the lighting, it certainly got darker and darker after the accident, didn't it?
A. That's for sure.
Q. And what I'm suggesting to you is that you were able to see sufficiently to let you run at fast pace on back roads, and that you wouldn't have done that had you not had reasonable vision, would you?
A. Definitely not if it was pitch black.
...
Q. And you were prepared to allow your inexperienced son with a disability to run along where there were indentations and variations in the surface as you were going along Emora Avenue?
A. Yeah.
Q. Because you each could see what you were doing at the time. That's right?
A. Along Emora Avenue, we could see enough in front of us to be able to run, yeah.
Q. Because even if it was dark, so that your vision was obscured, there's no way you'd have let your son run in that way, is there?
A. I probably wouldn't have ran if it was that black, dark I couldn't see where I was going to put my feet anyway myself. Yeah."
There is no mention made by the trial judge of the extent to which Mr Sayer's evidence was qualified by cross-examination, and was explained by his circumstances (which were focussing on the vehicle about to turn into the street on the side of which he was running). Finally, limited weight can be attached to Mr Sayers' difficulties in relocating the puddle in which he trod, to which he and the defendant took the plaintiff after the accident, because the ambient light was undoubtedly fading.
Secondly, in relation to [72], the fact that the defendant did not see the plaintiff is, with respect, not probative on the issue of ambient light conditions and visibility. The question for determination is whether his failure to see the plaintiff was because of his negligence or, alternatively, because of other circumstances which meant that a non-negligent driver would have failed to do so. It is circular to reason from the defendant's undoubted failure to see the plaintiff prior to the collision to the conclusion that it was too dark to see, thereby excluding the possibility that the defendant was failing to pay proper attention to the road.
Thirdly, [73] demonstrates that the trial judge placed greatest reliance on the evidence of Ms Wass and Ms Monley. It was open to him to do so, although it was desirable to have addressed all of the independent evidence. But to the extent that he based his finding upon the evidence of Ms Wass, it was necessary to address the inconsistency in her evidence (as appears from [71]) that she could see some 50 metres ahead. Ms Wass said she was able to distinguish between the visibility conditions prevailing when the accident took place and when she left the scene between 30 and 45 minutes later:
"Q. Did you notice whether the light was the same by the time the police had arrived as when you were walking or had it changed in some way from when you were finishing your walk?
A. It was completely dark by the time I left.
Q. How would you describe the light at the time you were walking?
A. It was dusk.
Q. Are you able to tell us, by reference to your looking up the street, how far you could see up the street?
A. Probably only 50 metres. I'm not sure on the distance. It's very hard to say."
That evidence is strikingly different from the evidence referred to in [73]. His Honour was seemingly conscious of the conflict, but failed to resolve it. One obvious resolution is that Ms Wass could see 50 metres into the distance, but in circumstances where she was walking with a dog and chatting to her friend while walking on the side of the street, she did not in fact look out to see the plaintiff's motorcycle until it was five metres away from her. If so, the fact that two pedestrians in conversation did not see the plaintiff until he was almost upon them says little about whether a driver intending to turn right was negligent in failing to see him. Similar reasoning could explain Ms Monley's evidence that she saw the motorcycle "only when it was probably about 2 to 3 metres away". There may be other reconciliations of the conflict in their evidence, but if so, the trial judge, who was much better placed than this Court to evaluate it, failed to do so expressly.
Fourthly, in [74] the trial judge made a finding that whether or not the plaintiff was wearing a fluorescent shirt did not matter. That reasoning is troubling. It does not seem to be well-founded in the evidence. The trial was run on the basis that it mattered very greatly whether the plaintiff, who chose to ride a motorcycle on a road without headlight or helmet, was or was not wearing a high visibility shirt. If the ambient light conditions were such that it did not matter whether his torso was covered in a high visibility shirt which was reflective, or at least readily visible, then at the very least, this required persuasive reasoning to justify setting aside the relevance of the issue. The reasons do not include such reasoning.
The applicable principles are not in dispute. This Court is required to conduct a "real review" of the trial. "Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect": Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]. In considering the adequacy of the reasons of the trial judge, the reasons which are actually stated are to be understood, on appeal, as recording the steps that were in fact taken by the trial judge in arriving at the end result: Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130] (Hayne J). It is necessary to " ... engage with, or grapple or wrestle with, the cases presented by each party": Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [134], Coote v Kelly [2013] NSWCA 357 at [39]. As the opening paragraph of the joint reasons of Mason P, Ipp and Tobias JJA in Whalan v Kogarah Municipal Council [2007] NSWCA 5 records:
"[J]udges' duties to give reasons are ... designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party."
The subsequent decisions were recently reviewed by Gleeson JA in Keith v Gal [2013] NSWCA 339 at [109]-[119]. It suffices to recall the statement by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:
"Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried."
The reasons disclose that this judgment falls into the description given by McColl JA. The issue of ambient lighting and visibility was the critical issue in a nine day trial. The plaintiff is entitled to be told why the evidence of Mr Jones and Constable Kennedy and of his mother (and indeed his own evidence) was rejected. That is to say, most of the testimonial evidence which favoured his case was not mentioned in the dispositive paragraphs of the trial judge's reasons. Further, the plaintiff is entitled to be told why that part of Ms Wass' evidence which favoured him was rejected for that part which told against him. And the plaintiff is entitled to a sense of grievance to the extent that the defendant's own evidence that it was too dark to see him influenced the outcome.
It follows that grounds 3 and 4 should be upheld. However, the conclusion that the fact-finding process miscarried is strengthened by the way in which the remaining two issues were resolved.
Clothing worn by the plaintiff (Grounds 1, 5 & 6)
The plaintiff challenged the trial judge's findings with respect to the plaintiff's clothing at the time of the accident. Although the three grounds are expressed in various ways, the substance of the challenge to the finding that he was dressed in dark clothes, and was not wearing a high-visibility fluoro work-shirt, is that it was erroneous when regard was had to all of the evidence.
It may be that because the trial judge did not regard the issue of clothing as dispositive, his reasons were concise. He said:
"78. I am not satisfied that the plaintiff was wearing his yellow fluoro work top at the time of the accident. In truth, his mother had no real idea how he was clothed when he left the house. It is clear that he proceeded in a surreptitious way to hide from her that he was taking his motorcycle. Just what he might have done so far as changing, she really couldn't say.
79. Again, the evidence of the independent witnesses on the issue is to be preferred. Miss Wass and Ms Monley were very clear in their recollection that his clothing was dark, and he was wearing shorts and a T-shirt, not long pants and a work top.
80. No-one at the scene of the accident saw a yellow fluoro work top. Even his mother described it as brown. Amongst other unsatisfactory aspects of the plaintiff's case on clothing, such as where the logo was positioned, were the inconsistencies about what the nature of his footwear was.
81. Irrespective of the factual issue, in my view the question of clothing is irrelevant because, as I have already found, having regard to the state of ambient lighting and visibility, and the speed at which the plaintiff was travelling, he and his motorcycle were not visible to the defendant prior to him making the turn into Emora Avenue."
It was not in doubt that the appellant, whilst at work on the day of the accident, and prior to the accident, was wearing a high-visibility yellow fluoro short-sleeved shirt. The plaintiff said he did not change out of that shirt prior to the accident but remained in his work clothes, which included long trousers, but went to his room and changed out of his work boots, which were steel capped, and put on a pair of Dunlop Volley-style soft shoes.
The plaintiff submits that his evidence was corroborated by his mother. His mother said that her recollection was that when he arrived home from work he was wearing his work clothes, which consisted of a shirt with a Thiess logo on it, which was predominantly yellow fluoro at the top and was dark blue at the front and back around the abdominal area. However, on cross-examination, when her recollection was tested, it was clear that she did not have a clear recollection of whether or not the plaintiff had changed from his work clothes. She did not see him leave the house, but was aware of him going out the front door. His mother was unaware that he had gone to his room to change, at least, his boots. However, she did adhere to her opinion that when he left the house, her son was wearing his work clothes.
It was open to the trial judge to discount the evidence of the plaintiff's mother on this issue, and so no criticism is to be made of the trial judge's remarks in the first paragraph set out above about the evidence of the plaintiff's mother. But [79] is replete with factual error. First, it is said to address the evidence of the independent witnesses. There were three relevant independent witnesses, not just the two mentioned in this paragraph (Ms Wass, Ms Monley and Mr Sayers; Mr Jones and Constable Kennedy gave no evidence about clothing).
Secondly, it was wrong for the trial judge to say that "Ms Monley [was] very clear in [her] recollection that his clothing was dark" - the opposite was true. Her evidence was:
"Q. Do you agree that they were dark coloured clothing?
A. I can't remember, like, exactly what colours the clothing was."
The other witness who attended on the scene was the jogger Mr Sayers, who was not mentioned in [79]. Mr Sayers and the defendant were the two men who were first at the scene and sought to put out the flames which engulfed the plaintiff. Mr Sayer's evidence was as follows:
"Q. During that time, or any time earlier, when you'd assisted in trying to put out the flames, what observations did you make of his clothes, or what was left of his clothes?
A. The only observation I made was that they seemed to be - the shirt seemed to be almost burnt off, you know. The clothes really were burnt off, and the skin was - he's had that flaky skin. That's what I observed.
Q. To the extent that there was any clothing on the upper part of his body or his shoulders? Were you able to determine what sort of clothing?
A. Well, it looked like it was a T-shirt or a singlet, a dark T-shirt or a singlet, but there was very little left of it.
Q. Did you see anything at all that was of a fluoro or a bright yellow colour?
A. No I can't remember no fluoro shirt or anything like that."
Accordingly, of the independent witnesses, Ms Wass had no recollection that the plaintiff was wearing shorts and a T-shirt, Ms Monley had no recollection that his clothing was dark, and Mr Sayers, who did have a recollection that the remnant clothing was dark, and that he was wearing shorts, described the difficulties he had in seeing what clothing the plaintiff was actually wearing, given the fact that most of it had been burnt away.
Finally, it seems that the trial judge disregarded the inconsistent evidence of the defendant as to clothing. The defendant gave evidence that he thought the plaintiff was wearing "a dark-coloured T-shirt with long pants, that was on fire". It may be that the defendant's evidence was disregarded because the collision was for him also a traumatic experience (he suffered burns to his arms, and did not recall seeing Ms Wass or Ms Monley nor was he aware of the arrival of the fire brigade or the ambulance or the police). But that is speculation on our part; because the reasons do not disclose how or why the trial judge rejected what was common ground between the plaintiff and defendant, namely, that the plaintiff was wearing long pants, which was consistent with his evidence that he did not change out of his work clothes.
In [80] the trial judge referred to the plaintiff's mother describing the clothing as brown. She gave this evidence:
"I remember seeing his skin looked all peely, and it looked like his clothing had been - I don't know whether it had been burnt or - it just looked like it had been damaged. It was kind of brown like his skin was, and that's what I recall of it."
It will be recalled that Ms Sexton arrived at the scene after the ambulance officers, and well after Mr Sayers and the defendant had dragged the plaintiff into the puddle to put out the flames. His clothes, such as was left of them, had been burnt and then rolled in mud. That his mother described them as brown is, with respect, irrelevant to the issue. Yet not merely did the trial judge appear to regard that as relevant, but, because his Honour then referred to "other unsatisfactory aspects of the plaintiff's case on clothing" he seemed to regard that evidence as adverse to the plaintiff, when it was neutral.
In the same category, in our view, are the other inconsistencies on which the trial judge placed reliance. The location of the logo is, with respect, irrelevant to the only issue which mattered: whether he was wearing a high visibility shirt or not. The other inconsistency as to his footwear was that the plaintiff had said that he was wearing white Dunlop volleys, whereas it was plain they were tartan coloured volleys from the photographic evidence (as he conceded when shown the photographs in cross-examination). Once again, that did not much assist to determine whether the plaintiff was wearing a fluorescent shirt.
Those four dispositive sentences in [79] and [80] resolving a key factual dispute in a nine day trial as to which six witnesses had given evidence, five of whom were present at the scene, some aspects of which are undeniably wrong, confirm the conclusion that the trial judge failed to engage or grapple with the competing cases presented by the parties.
Sufficient error has been disclosed in the fact finding process on this subject to warrant the upholding of these grounds of appeal.
Noise and audibility (Grounds 9, 10 & 11)
Once again, the whole of the reasons of the trial judge are concise:
"82. Nor am I satisfied that the noise of the plaintiff's motorcycle acted as some sort of cue requiring the defendant to do something different from what he did. He said he did not hear the noise, and it was not put to him that he should have been able to hear the approaching motorcycle, south of Emora Avenue, above the noise of his own decelerating V8 engine, with loud mufflers.
83. Nor did Mr Sayers hear the sound of the motorcycle. More important, however was the evidence of Ms Monley that she was unable to tell where it was geographically until it was 'upon' her. The noise, even if the defendant had heard it, was not in itself sufficient to warn the driver of a car as to its source, its location or, assuming it was identified as a vehicle, its intended path of travel.
84. Apart from stopping at the intersection of Emora Avenue, it is not clear what other action it is alleged the defendant should have taken, particularly given that the motorcycle was unlit. As the defendant pointed out, it was not put to him that he should have heard the motorcycle or that he should have reacted in some specified way in response. The defendant was not, therefore, given an opportunity to deal with the allegation."
The defendant gave evidence in chief that he did not hear the plaintiff's motorcycle. The extent of the cross-examination on this point was:
"Q. You failed to listen carefully as to what was going on around you.
A. No."
The plaintiff submitted that the motorcycle which he was riding was quite noisy and, given that the defendant's front windows in his motor vehicle were down at the time of the accident, the defendant should have heard the motorcycle and realised that it was approaching the intersection when he came to make his right-hand turn.
The plaintiff submitted at trial that had the defendant been properly attending to all of the surrounding circumstances, he would have heard the noise of the motorcycle. Having heard it, the plaintiff submits that a reasonable driver in the position of the defendant would have switched his lights to high beam, and had this occurred prior to him commencing his right-hand turn into Emora Avenue, the plaintiff would have been visible and the accident avoided.
The plaintiff submitted that the evidence established a context against which this factual construct ought be viewed, which was one that there had been "regular use by teenagers of such motorcycles along that road ...". Shortly put, the plaintiff's case was that the noise of the motorcycle, in the context of the time and place, should have acted as some sort of cue or forewarning of the presence of the motorcycle "somewhere in the vicinity".
Of particular importance to these submissions was the nature of what the plaintiff describes as "the context". The plaintiff himself gave evidence that he had seen other Thumpstars being ridden on the road. He could not say how frequently, but "a matter of months ago ... I did see a person being doubled on Emora".
Ms Wass and Ms Monley, who were both residents of the local area and were accustomed, as they were engaged on this occasion, to walk their dogs in the streets, were not asked about the issue of whether such motorcycles as the plaintiff was riding were regularly used by teenagers in the area. They gave no evidence at all on that issue.
Constable James Kennedy, who was the police officer who attended the scene of the accident, lived at the time of the accident, in Malinya Street. He was well familiar with the area. He gave evidence that bikes similar to that being ridden by the plaintiff, did drive up and down Malinya Road frequently. He observed that the people riding unregistered trail bikes were often kids and young adults. When questioned by the trial judge as to whether his observations of these occurrences included the bikes being ridden after dark, he said that probably occurred, but not as frequently and that he noticed it more through the day. Some qualification of this evidence occurred in cross-examination.
Mr Christopher Jones, a paramedic stationed at the Bateau Bay Ambulance Station, was also familiar with the area. He was not asked any questions about his observations of trail bikes being ridden in the area.
It seems that the trial judge must have accepted the submission of the plaintiff that his motorcycle was a "particularly noisy one", although this is not completely clear. Nor is it clear just how noisy the trial judge thought that the plaintiff's motorcycle was. There was no clear acceptance of, or rejection of, the plaintiff's submission, that the defendant should have heard the plaintiff's motorcycle. Rather as [83] shows, the trial judge seems to have found that regardless of the level of the noise, it was not sufficient to give the defendant any warning of its location, and that was sufficient to dispose of the issue.
As well, as [84] shows, the trial judge placed significant weight on the absence of any adequate opportunity for the defendant to respond to the allegation that he ought to have altered his method of driving to take account of the noise.
The defendant's evidence was that he did not hear any noise other than the noise from his own car. Further, he gave evidence, over objection, that he had modified his car's exhaust, so as to make it louder. The nature of the objection is not recorded in the transcript, but the plaintiff in submissions said that that evidence had been led in an attempt to meet any case put against him that he should have heard the motorcycle, to which submission the defendant did not demur.
Contrary to the statements of the trial judge at [82] and [84], there was no need for the cross-examiner as a matter of fairness to the witness to go any further than he had: the witness denied hearing anything and denied any failure to listen carefully. Indeed, the question posed by the trial judge, whether the defendant should have been able to hear the motorcycle, would not have been admissible. Accordingly, the trial judge was in error in the principal way in which he addressed this issue.
Moreover, the trial judge did not expressly find one way or the other whether the plaintiff's motorcycle was audible to the defendant (whose windows were down) as they approached each other. That failure calls into question the force of the final part of his Honour's reasoning that, based on the evidence of Ms Monley, the noise (whatever it was) was not in itself enough to warn the driver of a car of its source, its location or, assuming it was identified as a vehicle, its intended path of travel. In effect, the judge dismissed this aspect of the plaintiff's case on causation, without determining breach.
As well, whilst that reasoning reflected Ms Monley's evidence, it failed to address the inconsistent evidence of her friend Ms Wass, who said "I heard the bike approaching, you couldn't miss it, and then eventually you could see the bike and the rider" and "You could hear it for a long time before you could actually see the bike. It was exceptionally noisy". Ms Wass, in cross-examination, said she was able to determine, at the time she heard the noise of the motorbike and before she saw anything, where the noise was coming from. There was no explanation as to why the trial judge relied on the evidence of Ms Monley and not the evidence of her companion, Ms Wass.
The way in which this issue was resolved confirms our view that the process of fact-finding has miscarried. These grounds should be upheld.
Visibility of the plaintiff to the defendant (Grounds 2 & 7)
The findings of the trial judge challenged by these grounds of appeal were made against the background of the earlier findings as to ambient light, high visibility clothing and noisiness of the motorcycle. It is not possible for the findings of the primary judge, which are challenged by these grounds of appeal, to stand in isolation from the earlier erroneous findings, so that these findings should also be set aside.
For completeness it may be noted that there was no evidence as to whether the streetlights were on or off; nor was any use sought to be made of the lack of evidence that they were on.
Causation
The plaintiff's case was that had the defendant been paying proper attention to the road, he would have seen and heard and avoided the defendant, notwithstanding the absence of any light on the motorcycle. The trial judge found that the plaintiff had failed to establish causation (at [107]) for reasons set out at [99], [100], [103] and [106]; the relevant portions are extracted below:
"99. I am satisfied that the plaintiff was riding a dark coloured motorcycle without lights or reflectors, and he was wearing dark clothes, at a speed of at least 50 kph, probably more, in dark conditions, such that he was never visible to the defendant, and could not have been seen at the time he commenced to turn, and there was thereafter insufficient time for the defendant to have reacted in time to avoid a collision, even if he had looked along Malinya Road, rather than directing his attention to the turn and to Emora Avenue.
100. ... To the extent that the plaintiff and his motorcycle may have entered the area illuminated by the headlights of the defendant's car in the course of making the turn, it would have simply been too late for the defendant to have taken any effective evasive action.
103. Nor am I satisfied that having regard to so-called cues the defendant could or should have done anything different, including stopping at the intersection. Specifically, as I have already found, the issue of noise did not create any additional responsibility on the defendant, and nor did the fact that motorbikes were prevalent in the particular area. To my mind the plaintiff's proposition involved the application of an unreasonably and unrealistically high standard, and is not the standard of reasonable care and skill: Hawthorne v Hillcoat [2008] NSWCA 340 at [48].
106. For the reasons given the defendant was unable to see and react to the plaintiff's oncoming motorcycle prior to turning, and having commenced the turn, there was insufficient time for the defendant to take any effective evasive action to avoid the collision."
True it is that aspects of the finding of no causation were based on the expert evidence (the experts were agreed that if the vehicle was travelling at a speed of 15kph, and the motorcycle was travelling at 50kph, then if the perception-reaction time exceeded 1.2 seconds then the vehicle could not be brought to a halt based on either expert's detection distance). But that does not deal with the question of causation where the defendant was negligent in failing to see or hear the plaintiff prior to starting his turn. That finding depends (and was expressed to depend) upon the findings of trial fact as to ambient light and visibility, as well as clothing and noise, which have been found wanting.
Why was it that the defendant did not see the plaintiff as he approached and turned into Emora Avenue? Why was it that the defendant did not hear him either? Perhaps it would have been too late for the defendant to take any action, once the plaintiff came within the line of his turning headlights, but [100] of the reasons of the trial judge fails to answer the basic question: why did the defendant fail even to see the plaintiff? Moreover, the trial judge made no finding as to whether the plaintiff's motorcycle was audible to the defendant. These were the basic issues fought out after a nine day trial. They needed to be determined.
Contingent finding of plaintiff's fault (Ground 13)
Contributory negligence fell to be assessed in this case in accordance with s 138 of the Motor Accidents Compensation Act 1999 (NSW). That section makes applicable "[t]he common law and enacted law as to contributory negligence ...", unless otherwise provided in the section. Section 138(3) provides that the Court is to reduce any award of damages " ... by such percentage as the court thinks just and equitable in the circumstances of the case." The assessment of contributory negligence involves a comparison of culpability (Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494), being a question "of proportion, of balance and relative emphasis" (see Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702 at [94] and the authorities there cited).
In the alternative to his finding that the defendant was not liable, the trial judge assessed contributory negligence at 80%, because "[e]ven if it were to be found that the defendant was negligent, his relative culpability could, in my evaluation, be extremely minimal, and the overwhelming responsibility for the collision rests with the plaintiff".
The premise to such an exercise is that the defendant was in breach and his breach caused the collision. But how? By failing to see the plaintiff, or failing to hear him, or both? What were the light conditions? What was the defendant wearing? All those matters bear upon the relative culpability of the parties. The basis on which the primary judge assessed the relative culpability at 80% was not explained.
Undeniably the plaintiff failed to take reasonable care - by riding on the road, at dusk, without light or helmet, as fast as he could, on an unregistered motorcycle, contrary to his mother's express instruction. But it is simply not possible for a court to assess contributory negligence in the alternative without clearly setting out the counterfactual findings of fact on which the assessment is based: Gaskin v Ollerenshaw [2012] NSWCA 33 at [62]-[63]. As no order was made, and this finding did not in terms support the order which was made, it cannot be set aside. It should, however, be ignored by the judge conducting the retrial, who will have to make a fresh assessment of culpability, on both sides.
Privilege (Ground 12)
In the course of cross-examination of the defendant, plaintiff's counsel called for "any statement obtained by any investigator investigating the circumstances of this accident obtained from the defendant". In answer to the call, counsel for the defendant produced a report from M&A Investigations Pty Ltd dated 9 December 2008. Attached to the report was a statement from the defendant taken by the investigator and dated 25 October 2008. Counsel for the defendant claimed client legal privilege with respect to the statement.
The claim for privilege was challenged and a hearing was conducted on the voir dire. The defendant called Mr Stephen Kwok, an employee of the insurer, identified as a "claims adviser". A bundle of documents was also tendered, including correspondence from the insurer's file. There may have been some confusion as to who should properly address first on the question of privilege, but upon the trial judge indicating that he did not "really want to hear from" counsel for the defendant, counsel for the plaintiff said, "I won't say anything at this stage". The trial judge allowed the claim for privilege and the statement was not produced to the plaintiff.
In the absence of any submissions to the contrary by counsel for the plaintiff, that should have been an end to the matter. However, the following exchange then took place:
"His Honour: If you want reasons, you can ask for them and I'll give them in due course.
Campbell [for the plaintiff]: I'm content for your Honour to treat it as a ruling on evidence at this stage, and we can abide the end of the case before ...
His Honour: If you do ask me for reasons, I'll ask for some written submissions because I understand the gist of your argument and I want some full-blown written submissions on that issue come the time."
The offer to provide reasons was both unnecessary and confusing. In failing to pursue his objection, counsel for the plaintiff had effectively conceded that the claim for privilege was justified. The only forensic purpose in seeking the statement was, in the event that the contents revealed material inconsistent with the defendant's evidence, to use it as a basis for challenging his evidence in cross-examination. Once the cross-examination was complete, short of recalling the defendant, the statement had no forensic relevance. Despite that, and in circumstances which are not entirely clear, both parties dealt with the question of privilege in their final written submissions. The trial judge dealt with those submissions in his judgment.
Given the background, the defendant might have been entitled to object to the challenge to the ruling on privilege. Perhaps, having allowed the matter to proceed in the way that it did at trial, counsel felt some embarrassment in taking that point. In any event, it was not taken and the issue was argued on appeal. Because the matter will go back for a further hearing, the issue remains alive and should accordingly be dealt with by this Court.
The trial judge accepted that the dominant purpose of seeking the report "was to obtain legal advice, it being the insurer's contemplation that legal proceedings would ultimately eventuate": at [44]. That conclusion was based, his Honour said, on acceptance of the evidence of Mr Kwok, whom he regarded as a reliable witness. Mr Kwok had said that he had decided to seek legal advice with respect to the claim, before requesting the factual investigation which gave rise to the defendant's statement and that, to the extent that the insurer had obligations under the Motor Accidents Compensation Act, such obligations were subsidiary to his primary purpose of obtaining the statement for proceedings which he anticipated would ultimately eventuate.
On appeal, the plaintiff submitted that the trial judge's conclusion as to the dominant purpose of obtaining the document was erroneous and, further, that the trial judge had failed to have adequate regard to the provisions of s 117 - s 119 of the Evidence Act 1995 (NSW). In particular, the appellant submitted that the statement was not, and could not ever have been "a confidential communication" within the meaning of s 117 of the Evidence Act.
It is necessary, in order to consider the plaintiff's submissions, to understand the factual sequence in which the statement of the defendant came into existence. The accident occurred on 16 May 2008. By letter dated 25 September 2008, the solicitors for the plaintiff wrote to the Claims Manager at the third party insurer, which was liable to indemnify the defendant. That letter included the following:
"We wish to advise that we have been instructed to act for the above-named in respect of injuries received as a result of a motor vehicle accident on 16 May 2008, and enclose herewith by way of service upon you the following documentation:
(a) Motor Accident Personal Injury Claim Form;
(b) Police Accident Report."
The documents attached to the letter made it plain that the plaintiff had suffered very severe injuries and had been continuously in hospital at Royal North Shore Hospital since the accident occurred. They also disclosed that the plaintiff was not wearing a motorcycle helmet when the collision occurred, that he held only a learner's permit, had less than 12 months' driving experience, and was riding a 110cc Thumpstar motorcycle which was not registered. The claim form included information which suggested that the plaintiff's ability to earn income had been completely destroyed and that he was permanently unfit for work.
By any measure, this information disclosed the potential for the quantum of the claim to be large and, also, that the issue of fault of the respective parties for the collision was complex.
The file created by the third party insurer was allocated to Mr Kwok. Upon receiving the file, Mr Kwok read it and made a detailed file note. The file note described the accident and the injuries received by the plaintiff. It also included a short description of the plaintiff's medical care and treatment. It noted that there were a number of incomplete details in the claim form, and then included the following under the heading "Recommendations/Actions":
"1. I have discussed this matter at length with Jonathan, and we have both considered it necessary to refer this file to Mr Daniel Stoddard of Spark Helmore for his advices on liability. We hope to ascertain whether there is any contribution from the claimant (i.e. foreseeable risk, unregisterable bike with possibly no headlights, speed, lights etc → contrib.) whilst, presumably being unlicensed."
It noted that it would be appropriate to arrange a factual investigation. The "Jonathan", referred to in the extract above, was Mr Kwok's superior officer. Mr Kwok said of his conversation with him:
"In this particular claim, after receipt of the claim form, I had reviewed the file, and after consultation with my then team leader, we considered that liability was an issue ... and that ultimately proceedings would be commenced, and in anticipation of that, we proceeded to obtain legal advice. To assist in obtaining that legal advice, that was the purpose of initiating this request for a factual investigation."
On 13 October 2008, Mr Kwok wrote to Mr Matthew Jamieson of M&A Investigations:
"The above claim is referred for investigation.
We have attached a copy of the Personal Injury Claim form, medical certificate, the insured driver's accident report form and the NSW police report for this matter.
We would be pleased if you could attend to interviewing the following person(s): -
● LSCON Pepette Reid, of Metropolitan Crash Unit,
● The insured driver, Mr Martin David Homer ...,
● If permitted, the claimant Mr Callum Sexton ... Please note Mr Sexton is legally represented by Messrs Beston Macken McManis. In the event an interview is not consented to, please forward a questionnaire highlighting the normal questions as well as requesting specific advices to questions 1-9 in the attached form.
..."
On 17 October 2008, Mr Kwok wrote to Mr Daniel Stoddard of Sparke Helmore, Solicitors, enclosing "a relevant copy of our claim file" and saying that they "would be pleased to receive your specific advices on liability and estimate".
On 20 October 2008, Mr Stoddard responded to Mr Kwok. He enclosed a copy of the District Court Practice Note (Civil) for his information. The Practice Note set out the standard timetable applicable in the District Court once proceedings are commenced. The significance of the Practice Note was that it required the parties to do as much of their preparation as possible before proceedings are commenced, so as to be able to comply with the standard timetable. On 11 November 2008, Mr Stoddard sent to Mr Kwok a lengthy letter of advice on liability. The letter concluded:
"Based upon the information we have at present, ... we recommend a determination be delayed until the investigator's report is received.
It may well be that an expert's opinion is required if the attending Police Officer measured skid marks that can be used to establish the Claimant's speed."
On 20 November 2008, Mr Kwok instructed Mr Stoddard to liaise with the investigator in relation to the issues identified in his advice. The letter said:
"We also agree that we should delay the crash reconstruction report until such time as we are in receipt of the factual investigation report and in particular, the measurements etc from the police.
...
We note a determination pursuant to Section 81 is required to be made by 25 December 2008, hence we would be grateful if you could provide a further update in respect of liability, 5-10 working days prior to this date."
On 5 November 2008, M&A Investigations wrote to Mr Kwok reporting on the progress of the investigation. That letter noted that the investigators had interviewed the insured and visited the scene where photographs were taken. However, the relevant police officer was not available until after 22 November 2008 and an extension of the due date for the report was sought, until 5 December 2008. This letter contained these printed words:
"Strictly privileged and confidential for the use and consideration of legal advisors in connection with anticipated litigation."
On 9 December 2008, M&A Investigations sent Mr Kwok their report, which included the statement of the defendant to which access had been sought. The cover letter by which the investigation report was forwarded, had the same printed statement as the letter of 5 November 2008. The letter also noted that M&A Investigations had liaised with Sparke Helmore, Solicitors, who they understood to be handling the matter on behalf of the third party insurer.
The plaintiff's written submissions at the conclusion of the trial contended that the evidence did not disclose any purpose for the preparation of the investigator's report which was privileged, or, in the alternative, that the privileged purpose was the dominant purpose. No submission was made that the document was not a confidential communication for the purposes of s 117 of the Evidence Act.
On appeal, the plaintiff boldly submitted that the trial judge had failed to give any consideration to the issue of whether the document was confidential. However, if the issue had not been raised before him, he did not have to address it.
In any event, the statement was plainly a confidential communication within the meaning of that term in the Evidence Act, being prepared in circumstances where the person who obtained it was under an obligation not to disclose its contents. The document was prepared as a consequence of the contractual relationship between the third party insurer and M&A Investigations. The relationship was one of principal and agent. Such a contract would ordinarily carry with it obligations of confidence. Given that investigations were being carried out to establish the exposure of the insurer and the degree of fault of the respective parties, there is little doubt that the results of such investigations were intended to be confidential.
The words printed on the M&A letterhead demonstrated that that organisation believed it was acting under an obligation of confidence and that any document which it produced was confidential. The statement of the defendant, to which access was sought, was attached to a report transmitted by a letter bearing such a statement.
The trial judge held that the dominant purpose for obtaining the document was for use in legal proceedings. The evidence of Mr Kwok supported that conclusion. In cross-examination he was not directly challenged upon his explicit statement that the document was produced for the dominant purpose of obtaining advice about contemplated litigation. It is true that counsel established that there may have been other purposes for the investigation, but if it had been intended to submit that the dominant purpose was not as he stated, then that should have been put to him: it was not. There was no reason established for the trial judge to disbelieve Mr Kwok. Mr Kwok's evidence supported the objective features of the arrangement with the investigator.
For all these reasons ground 13 must be rejected.
Conclusion
The appeal should be allowed: as this Court cannot resolve the competing evidence of fact, and neither party suggested that it could, there must, regrettably, be a retrial. The respondent should pay the appellant's costs of the appeal but have a suitor's fund certificate. The judge to whom the matter is remitted should deal with the question of costs of the original trial.
The Court makes the following orders:
(1) Allow the appeal and set aside the orders made in the District Court.
(2) Direct that there be a new trial of the plaintiff's claim.
(3) Direct that the costs of the first trial be in the discretion of the judge presiding at the new trial.
(4) Order that the respondent pay the appellant's costs of the appeal.
(5) Grant the respondent a certificate under Suitors' Fund Act 1951 (NSW).
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Decision last updated: 05 December 2013
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