Sudesh Sharma v Insurance Australia Limited t/as NRMA Insurance

[2017] NSWCA 55

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sudesh Sharma v Insurance Australia Limited t/as NRMA Insurance [2017] NSWCA 55

Hearing dates:

4 July 2016

Decision date:

24 March 2017

Before:

McColl JA, Meagher JA, Payne JA

Decision:

(1)   Dismiss the notice of motion filed 11 September 2015.
(2)   Extend the time for filing the notice of appeal to 11 September 2015.
(3)   Appeal dismissed.
(4)   Appellant to pay the respondent’s costs of the notice of motion and the appeal as agreed or assessed.

Catchwords:

INSURANCE – requirement to act with utmost good faith – Insurance Contracts Act 1984 (Cth), s 13 – whether breach of duty of good faith – where respondent obliged to determine claim for indemnity in a timely manner and without due delay – where appellant held Combined Building and Home Contents Policy issued by respondent – where appellant’s building damaged during storm in late December – where appellant lodged claim under policy on 29 December – where insured’s assessor visited property the next day – where another assessor attended on 12 January and explained to appellant insurer did not pay for structures not built to standard – where appellant injured when attempted to repair building two days later – where insurer declined liability 4 days later

 

DAMAGES – CONTRACT – action for breach of contract – remoteness of damages – whether parties might reasonably contemplate that an insured could suffer personal injury as a result of breach of insurance contract providing coverage with respect to property damage – whether circumstances reasonably within the contemplation of the parties at the time of contracting

 

PRODEDURE – whether primary judge erred in not drawing Jones v Dunkel inference – where respondent failed to call witness who initially assessed insurance claim – whether state of evidence before primary judge warranted Jones v Dunkel inference

 

PROCEDURE – Supreme Court procedure – application to lead further evidence pursuant to s 75A(8) Supreme Court Act 1970 (NSW) – whether special grounds for further evidence made out – whether further evidence could have been obtained with reasonable diligence for use at trial – whether further evidence would likely change outcome of trial – whether further evidence credible

EVIDENCE – admissibility and relevance – opinion evidence – whether expert evidence complied with Evidence Act, s 76 and s 79 – where medical certificates failed to identify specialised knowledge based on expert’s training, study or experience on which opinion wholly or substantially based – where trial judge rejected history set out in expert reports

Legislation Cited:

Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Insurance Contracts Act 1984 (Cth)
Supreme Court Act 1970 (NSW)

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Bobolas v Waverley Council [2016] NSWCA 139
CGU Insurance Limited v AMP Financial Planning Pty Ltd (2007) 235 CLR 1; [2007] HCA 36
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
HG v R (1999) 197 CLR 414; [1999] HCA 2
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lawrence v Gunner (No 3) [2016] NSWCA 18
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 205; [2001] NSWCA 305
McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346
Nyerlucz v Dei Rocini [1995] NSWCA 340
Payne v Parker [1976] 1 NSWLR 191
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Preston v Green (1944) 61 WN (NSW) 204
Tjiong v Tjiong [2012] NSWCA 201

Category:

Principal judgment

Parties:

Sudesh Sharma (Appellant)
Insurance Australia Limited t/as NRMA Insurance (Respondent)

Representation:

Counsel:
Self represented (Appellant)
S Maybury (Respondent)

  Solicitors:
N/A (Appellant)
MCK Lawyers (Respondent)

File Number(s):

2015/131901

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

Unreported

Date of Decision:

17 April 2015

Before:

Bozic DCJ

File Number(s):

2013/7330

Judgment

1. THE COURT: This is an appeal from a decision, Sharma v Insurance Australia Ltd t/as NRMA Insurance, [1] rejecting the appellant’s claim for damages arising from personal injuries allegedly suffered as a result of the respondent insurer’s breach of contract, including a breach of its duty of good faith. [2]

   1.    District Court of New South Wales, 17 April 2015, unrep (Primary judgment). The primary judgment did not have a medium neutral citation, nor paragraph numbers as is now customary. References to it, accordingly, are to page numbers.

   2. Insurance Contracts Act 1984 (Cth), s 13.

Background facts

2. In 2009, the appellant was the owner of an investment property at Lurnea. The property was occupied by tenants under a residential lease. The respondent insured the Lurnea property under a Combined Home Building and Home Contents Insurance Policy (the policy).

3. In late December 2009, during a storm a carport at the property was damaged. On 28 December 2009, the appellant visited the property to inspect the storm damage. On 29 December 2009, the appellant lodged a claim under the policy with the respondent. That claim was that the carport “has fallen damaging facia boards, guttering, post and a billiard table due to wind and storm”. On 30 December 2009, Mr Reid, a builder from Johns Lyng Group Pty Ltd, who appears to have been an assessor appointed by the respondent, visited the property at Lurnea. On 12 January 2010, Mr Meredith, an assessor employed by the respondent, also visited the property. In his later report to the respondent Mr Meredith noted that the damaged structure was not “built to standard” and that he had explained to the insured that the policy did not “pay for structures that are not built to standard”.

4. On 14 January 2010, the appellant fell from a ladder while attempting to repair damage to the carport. He subsequently alleged that he sustained significant injuries to his hands and wrists as a result of that fall.

5. On 18 January 2010, the respondent wrote to the appellant denying liability to indemnify him in respect of loss or damage caused by the storm. Subsequently the respondent contended that it was entitled to deny liability because any loss or damage did not occur as a result of a storm or other listed event under the policy and because the carport was the subject of wear and tear or faulty design or workmanship, in each case specifically excluded under the policy.

6. The appellant subsequently made a complaint to the Financial Ombudsman Service (FOS) in relation to the respondent’s denial of liability. Following that complaint the respondent paid an amount of $11,000 to the appellant, in respect of property damage caused by the storm. In the proceedings in the District Court the appellant claimed $18,800 for the costs of repairing the property damage, and in addition damages for the injuries sustained by reason of the fall. It is not clear whether the $18,800 was claimed as due in addition to the $11,000 already paid.

Decision of the primary judge

7. The appellant’s case was that by reason of the respondent’s breach of contract (including a breach of the duty of good faith), the appellant was obliged to conduct repairs on the Lurnea property himself, that as a result of doing so he suffered injuries and that those injuries constituted compensable damage. He also claimed the cost of repairing the carport.

8. As the primary judge recorded, the appellant’s case was that the injuries sustained in the fall of 14 January 2010 were caused by the respondent’s breach of contract in denying an indemnity which on the face of it occurred on 18 January 2010. The primary judge noted that it was not “seriously disputed” that the communication of that refusal to indemnify was a breach of contract. [3] That case was rejected for the following reasons.

   3.    Primary judgment (at 26).

9. First, the primary judge was not satisfied that the appellant’s wrist injuries were caused or exacerbated by the fall on 14 January 2010. His Honour placed considerable reliance on the medical evidence tendered at trial, largely by the appellant, which suggested that he did not complain about any wrist pain until 6 months after the accident, and that it was likely he had suffered serious wrist injuries well before the fall.

10. That evidence included a report of Dr Anthony Beard, who said “[t]he X-ray report from 20 July 2010 states that there was arthritis already present and I would suggest therefore that the scapholunate ligament injuries predate the fall of January 2010”, [4] and of Dr Siri Kannangara, a rheumatologist, who, in a report dated 28 September 2010, referred to earlier x-rays showing “degenerative changes in his hands” and referred to the appellant having undergone wrist surgery some time prior to the fall. [5]

    4.    Ibid (at 24).

    5.    Ibid (at 23).

11. Accordingly, his Honour found that on 14 January 2010 the appellant “fell from a ladder whilst attempting to fix the carport and injured the nail on his right index finger” but “did not suffer any injury to his wrists.” In his Honour’s view this finding, which flowed inescapably from the medical evidence, inevitably affected the appellant’s credit. [6]

    6.    Ibid (at 25).

12. Secondly, the primary judge held that breach did not occur until, at the earliest, 18 January 2010, the date indemnity under the Policy was denied. [7] In making that finding, his Honour rejected the appellant’s evidence in cross-examination that the respondent’s builder told him during an inspection prior to 18 January 2010 that the claim would be denied. Accordingly, the primary judge proceeded on the assumption that the appellant had not been told that the claim had been denied when he commenced the repair work. [8]

    7.    Ibid.

    8.    Ibid (at 26).

13. His Honour also rejected a Jones v Dunkel [9] submission the appellant apparently made about the respondent’s failure to call the builder on the basis that, in a trial conducted on affidavit evidence, there was nothing in the appellant’s affidavit evidence which would have put the respondent on notice that the builder should have been called. [10]

    9. (1959) 101 CLR 298; [1959] HCA 8.

    10.    Primary judgment (at 26).

14. Thirdly, the primary judge rejected the allegation that the respondent had breached its obligation of good faith to the appellant. The fact that the respondent did not admit liability or pay the claim before 18 January 2010 was not sufficient to establish that there was such a breach. [11]

    11.    Ibid.

15. Further, a document the respondent had prepared for the FOS indicated that once the appellant’s claim was made, the respondent’s builder and assessor had attended the property and advised it that the structure was non-compliant and that it was, therefore, excluded by the policy. It could not be said that it had acted dishonestly or unfairly. Rather, it responded reasonably promptly and advised the appellant of the reasons for its decision. [12]

    12.    Ibid (at 26 – 27).

16. The primary judge concluded that the appellant was not, in any event, entitled to damages in respect of the injuries complained of because the damage he suffered was too remote. His Honour held that the damage suffered failed to satisfy either of the limbs in Hadley v Baxendale,[13] because:

1. the damage did not flow according to the usual course of things; and

2. there was no evidence of any circumstances known to the respondent at the time of entering into the contract which would bring the damage within the second limb of Hadley v Baxendale. [14]

   13. (1854) 9 Ex 341; 156 ER 145.

   14.    Primary judgment (at 27).

17. In relation to the claim to an indemnity for property damage, the primary judge did not consider there was an evidentiary basis for the payment of any amount in excess of the $11,000 already paid. Accordingly, the primary judge was not satisfied that the appellant had not been indemnified in full under the policy. [15]

    15.    Ibid.

18. The primary judge declined to assess damages in the light of his credit findings and “where, in my view, it is clear, almost beyond argument, that the claim for personal injuries is damages which is far too remote.” [16]

    16.    Ibid (at 28).

19. Finally, we note that the appellant was given leave, after the close of address by the respondent and over strenuous objection on the respondent’s part, to re-open his case and tender further medical evidence, which became Exhibit X. His application to do so was made after the issue whether he injured his wrists falling from the ladder or whether the ongoing problems with his wrists were due to some other cause such as degenerative osteoarthritis was drawn to his attention. [17]

    17.    Ibid (at 20 – 21).

20. The primary judge found that the medical certificates contained in Exhibit X assumed the history given to the doctors by the appellant and did not otherwise expose their reasoning as required and as discussed in Makita (Australia) Pty Ltd v Sprowles. [18] In these circumstances his Honour could not discern the reasons for the conclusions expressed by those doctors and gave their reports little weight. We mention this because it is relevant to the appellant’s application to adduce further evidence and, in any event, is challenged by the appellant in ground 6 of the notice of appeal.

    18. (2001) 52 NSWLR 205; [2001] NSWCA 305 (Makita); primary judgment at (25).

The issues on this appeal

21. The notice of appeal, filed on 11 September 2015, contains eleven grounds which may be summarised as follows:

1. the primary judge erred in failing to find that the appellant suffered wrist injuries as a result of the fall that occurred on 14 January 2010 (Grounds 1, 2, 4, 5, 6);

2. the primary judge erred in finding that if the respondent breached the contract by failing to indemnify the appellant with respect to certain repairs, that breach occurred after the fall and therefore did not cause the damage suffered (Ground 3);

3. the primary judge erred in finding that the respondent was not in breach of its duty of good faith in denying the appellant’s claim to an indemnity (Ground 8);

4. the primary judge erred in failing to draw an adverse inference from the failure of the respondent to call evidence from an agent about an alleged conversation which occurred prior to 14 January 2010 (Ground 7) and in finding that Ms Rajpati and Mr Kahn were not available witnesses (Ground 10); and

5. assuming the respondent was in breach, the primary judge erred in finding that the personal injury damage suffered by the appellant was too remote (Ground 9) and that the quantum of the property damage for which the appellant sought an indemnity could not be substantiated (Ground 11).

22. The appellant sought to tender further evidence on the appeal. As the resolution of that application was critical to his case as conducted in this Court, it is to that application that we first turn.

The application to adduce further evidence

23. The appellant moved on a motion to adduce fresh evidence dated 11 September 2015. The further evidence addresses a number of issues, the first two of which are related:

1. whether the appellant sought treatment for any wrist injury prior to 14 January 2010;

2. whether the wrist injury allegedly suffered by the appellant was caused by the fall that occurred on 14 January 2010;

3. a miscellany of issues apparently raised at trial, none of which appears to have been determinative (appellant’s affidavit of 15 June 2016); and

4. why the proposed further evidence was not advanced at trial (appellant’s affidavit of 14 June 2016, Rajpati affidavit 10 June 2016, Sahnia Raj Sharma affidavit of 10 June 2016).

24. Four affidavits in support, with annexures, were sought to be read. The first was an affidavit sworn by the appellant dated 10 September 2015 (ie 6 months after the judgment at first instance) which annexed the following medical evidence:

1. a letter from Lautoka Hospital in Fiji dated 23 April 2015 confirming that the appellant had x-rays at the hospital on two occasions, once in 2008 and once in 2011, which were “negative for any bony (sic, as in original) injuries on both occasions”. The parts of the body x-rayed were not identified;

2. a letter from Dr Kannangara dated 14 August 2015 addressed “To whom it may concern”, withdrawing an observation in her medical report of 28 September 2010 that the appellant had “an operation in Fiji to the right wrist”; she also said that, having reviewed her notes and communications from the appellant’s GP, “it is apparent that all his problems started after the injury he sustained in 14th January 2010 when he fell off a ladder …his report really should start from there.”

3. a letter from the Auckland District Health Board dated 30 April 2015 saying no records could be located for the appellant;

4. a letter dated 29 June 2015 from Associate Professor Graham Gumley who undertook the operations on the appellant’s wrists who advised that, to his knowledge, those were the only wrist surgeries he had had; and

5. a letter from Dr Beard (reports from whom were tendered at trial) to a Dr Jyothi Reddy dated 17 August 2015 advising that “…it would appear that Mr Sharma had no symptoms prior to the fall and that all his current incapacity has occurred since the fall.”

25. The whole of this affidavit and its annexures (which were relied on as opinion evidence) were objected to on the basis of Makita, the respondent contending in particular, that the letters from Associate Professor Gumley, Dr Beard and Dr Kannangara contained no reasoning process explaining the opinions each expressed.

26. The second and third affidavits affirmed by Ms Rajpati (mother of the appellant) and Ms Sahnia Raj Sharma (daughter of the appellant), both dated 10 June 2016, were objected to by the respondent on the basis that they contained hearsay evidence.

27. The fourth affidavit was affirmed by the appellant on 15 June 2016. It addressed a miscellany of topics such as the appellant’s economic position at the date the affidavit was sworn, the fact that the appellant had terminated the retainer of its previous legal representatives, the location of an invoice the appellant received from a builder who undertook repair to his carport in January 2010, the mode in which the carport repairs were carried out by the appellant, a conversation with an occupational therapist who examined the appellant on the respondent’s behalf (a matter to which we refer further below) and an assertion by the appellant about consulting a medical practitioner in Fiji during 2010 concerning the pain he was suffering in his wrist during various periods in 2010, in particular during the five months or so following his fall commencing in March 2010.

28. The fourth affidavit attached the following annexures:

1. a letter from Local Government Super dated 3 September 2015 stating that the appellant met the definition of total and permanent disability as at 14 January 2010 being the date after which he had not returned to work;

2. a letter from the Australian Government Department of Immigration and Border Protection dated 21 April 2015 enclosing a document recording the appellant’s international movements during the period 1 June 2009 – 30 December 2010;

3. a letter from the Nadi Dental and Medical Clinic (Dr Prem Chand) dated 8 February 2016 stating that the clinic held no record which could back the appellant’s claims of consultation as all the clinic’s patient records had been destroyed in a flood; and

1. what appears to be pro-forma letter from a labour recruitment firm concerning council mechanic positions emailed to the appellant on 25 May 2016.

The appellant’s submissions

29. The appellant first submitted that the primary judgment misinterpreted the opinions of a number of the treating doctors he consulted following 14 January 2010. Accordingly, the judgment “contains a number of serious errors as to facts”, a matter which he argued was confirmed by the proposed further evidence. [19] He contended that the further evidence directly contradicted the recorded medical history in the reports relied upon by his Honour and his Honour’s related finding that he did not injure his wrists on 14 January 2010.

    19.    Affidavit of Sudesh Sharma, filed on 11 September 2015 (at 2 – 3).

30. The appellant contended that much of the proposed further evidence disproved the statement in Dr Kannangara’s report of 28 September 2010 as to him having “had an operation in Fiji to the right wrist”. He argued that this was supported by the letter from Lautoka Hospital, the Auckland District Health Board document and Associate Professor Gumley’s letter all of which demonstrated, he submitted, that he had no surgery to his right wrist at, or at the hand of, any of those organisations or medical practitioners.

31. In addition to Dr Kannangara’s withdrawal of the statement concerning prior surgery, the appellant relied on her statement that it was apparent that all of his problems started after the 14 January 2010 fall and Dr Beard’s statement that it would appear that he had no symptoms prior to the fall and that all of his current incapacity had occurred since then.

32. The appellant submitted that these statements were in direct conflict with the primary judge’s finding and also affected his Honour’s adverse finding as to his credit.

33. Secondly, the appellant submitted that the proposed further evidence was prima facie credible and, if admitted, would be an important factor affecting the result of the trial. He argued that it had been produced by parties “entirely independent” of him. He submitted that the material was “inherently reliable and … prima facie likely to be accepted” because the documents were prepared by either “public medical authorities” or “experienced medical professionals.”

34. Thirdly, on the question of reasonable diligence, the appellant emphasised that he was self-represented and had a history of mental illness and thus was at a significant disadvantage at trial in preparing and conducting it, as well as identifying and addressing the real issues in dispute. He submitted that he did not act unreasonably in failing to adduce the further evidence before the primary judge given the disadvantage he suffered. He also submitted that, since the findings in respect of the injuries he suffered were fatal to his case below, further evidence which cast significant doubt on the evidence upon which those findings were based should be admitted. In any event, he submitted that absence of diligence was not determinative.

35. Finally, the appellant submitted that if the proposed further evidence had been available at the trial, there would have been a different result. He argued that if there had been evidence before the primary judge that he had injured his wrists in his fall on 14 January 2010, or, at least, that his symptoms did not manifest themselves until after that accident, there was a real possibility that his Honour’s findings in respect of his injuries and his credit would have been different.

The respondent’s submissions

36. The respondent opposed the motion to adduce further evidence. It submitted that all of the evidence could, with reasonable diligence, have been obtained for use at the trial. It submitted that the appellant was on notice both prior to, and during, the trial that the respondent’s case was predicated on him only having injured his fingernail during the accident. It pointed out that the appellant had tendered a large volume of material at trial, including Exhibit X, the substantial body of medical evidence tendered after the respondent had addressed at the end of the trial. Further, the evidence did not lead to a conclusion that any different verdict would be obtained (the relevant principles upon which these submissions were based are dealt with in [39] – [42] below).

37. In relation to Dr Kannangara’s withdrawal of the suggestion that the appellant had undergone earlier surgery in Fiji, the respondent submitted that the withdrawal of that evidence was not adequately explained and it would be difficult to assess its credibility without cross-examination of the doctor. The respondent submitted further, that, while documents such as the note from Lautoka Hospital might be considered credible, they were incomplete, failing to identify what parts of the appellant’s anatomy had been x-rayed. Furthermore it was submitted that the resolution of the question whether the appellant had at some earlier time had wrist surgery in Fiji was not a matter crucial to the primary judge’s conclusions.

38. The respondent submitted that the only further medical evidence not going to the “previous surgery” issue was that in the letter of Dr Beard which stated that the appellant “had no symptoms prior to the fall and that all his current incapacity has occurred since the fall”. However, Dr Beard’s earlier evidence was that the scapholunate ligament injury to the appellant’s wrists had occurred prior to the fall although the symptoms had not presented themselves until after the fall. The respondent submitted that there was a possible tension between Dr Beard’s further evidence and that given at the trial. The later evidence could be interpreted as predicated upon the symptoms being contemporaneous with the fall, whereas the previous evidence accepted that the appellant only noticed swelling in his wrists 6 months after the fall. In short, the respondent submitted that this evidence had no significant weight or utility.

Consideration of the application to lead further evidence

39. The Court may receive further evidence on appeal. Section 75A of the Supreme Court Act 1970 (NSW) provides, relevantly:

“(7)   The Court may receive further evidence.

(8)    Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9)    Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.”

40. Here the appeal is from a judgment after a hearing on the merits and, save that some of the documents the appellant seeks to tender were brought into existence after the trial, the further evidence is concerned with matters which occurred before the trial. The application is, accordingly, as the appellant accepted, founded on s 75A(8). Accordingly, although the categories are not closed, there are three conditions that must usually be satisfied in order for “special grounds” under s 75A(8) to be established. [20]

1. the evidence could not have been obtained with reasonable diligence for use at the trial;

2. the evidence must be such that there must be a high degree of probability that there would be a different verdict; and

3. the evidence must be credible.

   20. Lawrence v Gunner (No 3) [2016] NSWCA 18 (at [24]) per Gleeson JA; Akins v National Australia Bank (1994) 34 NSWLR 155 (at 160) per Clarke JA (Sheller and Powell JJA agreeing); Tjiong v Tjiong [2012] NSWCA 201 (Tjiong) (at [166]) per Meagher JA (Whealy and Barrett JJA agreeing).

41. In Preston v Green, the source of the “three tests”,[21] Jordan CJ referred to the third test slightly differently as being whether “the new evidence [is] prima facie likely to be believed”. [22]

    21. (1944) 61 WN (NSW) 204 (at 204).

    22. Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 (Phoenix) (at [13]) per Spigelman CJ.

42. These tests “… have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end.”[23] Thus, whether or not all, or any, of the three tests are satisfied, the court must determine whether it is just to admit the further evidence. [24]

1. The medical evidence before the primary judge

   23. McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70 (at 430 – 431) Dixon CJ, Fullagar, Kitto and Taylor JJ referred to with approval in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 (Nowlan) (at [14]) per Heydon JA (Mason P and Young CJ in Eq agreeing).

   24.    Nowlan (at [15]); Tjiong (at [168]).

43. Before addressing the admissibility of the further evidence, which all relates to the critical medical issues in the case, it is necessary first to identify the medical evidence that was before the primary judge.

44. The most important contemporaneous medical evidence which was tendered at trial and relied on by the primary judge was the following:

1. The appellant’s discharge summary from Liverpool Hospital Emergency Department on the day of the fall, which stated that an x-ray was taken of his right index fingernail. There was no record of complaint about any pain or injury in the appellant’s wrists on examination.

2. Medical records from the appellant’s general practitioner clinic which contained a history of the injury to the appellant’s right index finger. There were no recorded complaints made by the appellant of any other injuries sustained in the fall in the notes of consultations between 16 January and 4 February 2010.

3. Handwritten notes and a report from Dr Susan Holliday, which recorded a history of the appellant’s avulsed fingernail but no other injury; and that the appellant suffered from a “schizophrenia illness”.

4. A claim form the appellant submitted to Tower Australia Limited for income protection insurance dated 16 March 2010, which stated that the nature of his medical condition was “chronic schizophrenia” and that he was unable to work as a mechanic due to “medication and low concentration”, “low energy” and “poor memory.” There was no mention of any injury to his wrists from a fall.

5. The first recorded complaint by the appellant of a wrist injury to a general practitioner on 20 July 2010, 6 months after the fall. Swelling of the wrists was noted by Dr David Mark and the appellant was referred for an x-ray of both wrists and hands. The x-ray report indicated that there was:

1. marked destruction of the articular cartilages at the radio-carpal joints and mid carpal joints;

2. evidence of a previous ligamentous injury with scapholunate disassociation; and

3. appearances of osteoarthritis, presumably from an old injury.

6. Following another consultation with his general practitioner in August 2010, the appellant was referred to Dr Kannangara. A number of letters written by Dr Kannangara were tendered before the primary judge. Her first letter dated 28 September 2010 indicated that an x-ray showed degenerative changes in the appellant’s wrists following an operation on his right wrist in Fiji. In another two letters both dated 8 October 2010, Dr Kannangara referred to degenerative arthritis and unexplained degenerative arthritis in both wrists with “no known past history of trauma”. None of these letters make any reference to the appellant’s wrists being injured, whether by a fall from a ladder in January 2010, or otherwise. Rather, Dr Kannangara appears to have been given a history that the appellant noticed swelling in his wrists approximately 4 years before consulting her.

7. Dr Beard of Sydney Hand Surgery Associates provided a report dated 9 January 2012 apparently to the appellant’s general practitioner. It recorded a history of the appellant’s fall and nail injury. It also recorded that the appellant had noticed swelling around his wrists approximately 6 months later. Dr Beard reviewed the 20 July 2010 x-ray to which we have referred above and opined that the appellant’s “scapholunate ligament injuries “pre-date the fall of January 2010”. Dr Beard also noted that the appellant denied any previous trauma to his wrist and had no symptoms prior to the fall. He explained the nature of a scapholunate injury to the appellant. In short that was that “[o]ften the initial injury is many years earlier than the onset of significant symptoms”.

8. In commenting on the nature of the alleged injury, Dr David Millons (who was retained by the respondent for medico-legal purposes) noted in his report dated 25 November 2014:

“Mr Sharma has been suffering from osteoarthritis of both wrists which has clearly been of long standing. A review of his file would indicate that symptoms may have been in train for several years prior to the fall from the ladder. The fall from the ladder itself does not appear to have caused any particular wrist injury if the documented evidence is correct. The gradual onset of symptoms in the wrist some six months after the fall may just be part of the normal processes of attrition following on the chronic scapholunate injuries as Dr Beard indicates.”

Whether the further evidence could have been obtained with reasonable diligence for use at the trial

45. While we accept that in addressing the question of admissibility of further evidence on appeal, an unrepresented litigant should be afforded some latitude, the discretion s 75A(8) confers is not an unfettered nor an untrammelled licence to tender such materials. [25] Rather, as we have said, s 75A(8) is to be applied by determining what is just, which includes having regard to the public interest in the finality of litigation, ensuring that all parties receive a fair trial,[26] and applying the principles concerning adducing further evidence to which we have referred.

    25.    Phoenix (at [11]) per Spigelman CJ; (at [136]) per Campbell JA.

    26. See Bobolas v Waverley Council [2016] NSWCA 139 (at [246] – [247]) per McColl JA (Simpson JA and Sackville AJA agreeing); Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 (at [24]) per Meagher JA (Basten JA and Bergin CJ in Eq agreeing).

46. In our view, the appellant has not demonstrated why any of the documents he seeks to tender, or the statements he makes in either his 10 September 2015 or 15 June 2016 affidavits, could not, with reasonable diligence, have been obtained by or made by him prior to the trial.

47. Ms Rajpati, the appellant’s mother, and Ms Sharma, the appellant’s daughter, each said in their affidavits that they heard Ms Susan Beaver (an occupational therapist, apparently retained by the respondent to assess the appellant) tell the appellant on 22 December 2014, that his case would settle. The appellant also gave evidence of this conversation in his 15 June 2016 affidavit and asserted it was “the sole reason behind my lack of preparation for the initial trial”. This evidence provides, at best, some limited explanation for the appellant’s failure to obtain sufficient evidence to conduct his case.

48. However. this assertion cannot, in our view, explain why the further evidence was not adduced at the trial. The appellant did not inform the primary judge of any lack of preparedness. He did not apply for an adjournment of this matter on the basis that he was not ready to proceed at any stage. It is apparent he was given ample opportunity to adduce evidence at the trial. As the respondent submitted, he tendered a large body of evidence at trial, indicating a substantial degree of preparation, including Exhibit X to which we have referred above. The latter tender, in our view, demonstrates a high degree of appreciation on his part of the live issues at trial as to the cause of his wrist injuries.

49. In his written submissions the appellant relied on Nyerlucz v Dei Rocini,[27] which was cited with approval in Phoenix,[28] to establish that the absence of this requirement being satisfied should not be fatal to the present motion. However, the appellant in that case provided a sensible and reasonable explanation for his failure to lead evidence. Clarke JA said that “it would only be in rare cases that the Court would find that special grounds existed in the absence of the satisfaction of the three tests”. [29] Such circumstances are not present in this case.

    27. [1995] NSWCA 340 (Nyerlucz).

    28.    (at [12] – [22]).

    29.    Nyerluxz (at 6).

50. One might have slight pause for thought concerning Dr Kannangara’s apparently incorrect statement in her 28 September 2010 report concerning an operation in Fiji. This report appears to have been tendered by the respondent as part of a bundle of documents on the first day of the four day trial. It was addressed to one of the general practitioners the appellant consulted. However the appellant had ample opportunity in the course of the trial to read Dr Kannangara’s report. Its significance to his case is readily apparent. His live appreciation of the issues was, as we have said, apparent from the tender of Exhibit X. He ought to have recognised the incorrect entry, assuming for present purposes it was incorrect, and taken steps to correct it.

51. In our view, all of the further evidence could, or at least should, have been obtained with reasonable diligence by the appellant for use at the trial. Really, what the appellant is seeking to do is to re-litigate issues he was given the opportunity properly to litigate before the primary judge.

The evidence must be such that there must be a high degree of probability that there would be a different verdict

52. Further, in our assessment the documents sought to be tendered, considered individually and collectively, would not be likely to change the outcome of the trial. While the letters from Lautoka Hospital in Fiji, Auckland District Health Board and Dr Kannangara assert that the appellant did not undergo surgery to his right wrist in Fiji prior to January 2010, this issue was not determinative before the primary judge. Although there was a suggestion in Dr Kannangara’s earlier report tendered at trial that the appellant did have wrist surgery in Fiji, this was only one of many pieces of evidence strongly pointing to pre-existing wrist injuries.

53. Associate Professor Gumley’s letter stated that there was no reference to any prior wrist surgery in the appellant’s medical history prior to 8 March 2011. For the same reason that evidence is unlikely to lead to a different verdict.

54. The further evidence of Dr Beard is problematic. His letter stated that “it would appear that Mr Sharma had no symptoms prior to the fall and that all his current incapacity has occurred since the fall”. However, Dr Beard does not provide an explanation as to why he had previously concluded that degenerative changes in the appellant’s wrists must have predated the fall, although he did give such an explanation in his earlier report to which we referred above. [30] Moreover, Dr Beard does not express any opinion to the effect that the injuries to the appellant’s wrist are consistent with their having been caused in or exacerbated by the fall. Dr Beard simply says that the appellant’s “incapacity” and symptoms occurred at some point after the fall. This accords with his earlier report that the injuries occurred prior to the fall but the symptoms only presented themselves after the fall, that being consistent with a scapholunate ligament injury where the onset of significant symptoms often does not occur until many years later than the injury itself. So understood, the new evidence does not appear to support the proposition that the fall caused the wrist injuries. The Court is not in a position to assess, weigh and apply this evidence against the expert medical testimony received by the primary judge. Even at its highest, we do not regard Dr Beard’s further report, if admitted, as likely to lead to any different verdict.

    30.    At [44(7)].

55. In Ms Rajpati’s affidavit, she stated that the appellant had made numerous complaints to her about the unbearable pain in his hand since the day of the fall. An affidavit of Ms Rajpati dated 24 May 2014 was tendered at trial but did not contain this evidence. Even if this further evidence was accepted, the likely impact would be small. The absence of any specificity about these complaints, allegedly made to his mother, in comparison with the evidence which was tendered at the trial, means that the evidence would be unlikely to affect the verdict.

52. Documents sought to be tendered by the appellant annexed to his affidavit dated 15 June 2016 on their face would not have affected the outcome of the trial. The letter from Local Government Super simply related to the appellant meeting the definition (it is unclear on what basis) of Total and Permanent Disability as at 14 January 2010. The appellant’s international travel records do not go to any relevant issue. A letter about the appellant’s employment status could not lead to a different verdict. A medical report from Dr Chand in Fiji which confirms that all of the appellant’s medical records prior to March 2012 have been destroyed, could not possibly lead to a different verdict.

53. The injury allegedly sustained to the appellant’s wrists in the fall on 14 January 2010 was the critical issue in the case and one on which the appellant bore the onus. All of this further evidence, whether considered separately or as a whole, is unlikely to lead to a different verdict. This is because of the very considerable body of evidence otherwise available that the appellant’s wrist injuries predated the fall in January 2010.

Whether the further evidence is credible

58. In our view, the proposed further evidence on the critical medical issue is not credible.

59. Most of it has apparently been produced by a process of further assumptions being given to witnesses (including expert witnesses) by the appellant. The possible exception is Dr Beard’s report which is addressed to a doctor at the Macquarie Medical Centre, the general practitioner’s practice the appellant appears to attend. However, all the proposed further expert evidence, in particular, lacks contextual reference as is apparent from Dr Beard’s apparent failure to take into account what he had said in his 9 January 2012 report and the absence of any explanation on Dr Kannangara’s part as to how she came to make the error in her 28 September 2010 report. Thus, there is an absence of evidence which would allow the Court to test whether the claims made in the further evidence are reliable. Absent a proper explanation from the appellant about the process of obtaining this further evidence from expert witnesses, which has not been provided, we are not able to conclude that the further evidence is credible.

60. As to the balance of the proposed evidence, we make the following observations. While the evidence concerning Ms Beaver’s statement may be credible, for the reasons we have explained concerning the reasonable diligence issue, it does not explain the appellant’s failure to elicit that evidence at trial where, for the reasons we have given concerning the appellant’s appreciation of the issues, any possible explanation for lack of preparation ought to have been adduced. The reports from overseas medical establishments also lack context, save to the extent the appellant sought to supply the context, at least in relation to the report from Dr Chand, in his 15 June 2016 affidavit. In any event, none address any issue concerning whether or not the relevant institution had anything to do with the appellant’s wrists. As to the miscellany of other evidence the appellant seeks to adduce, it resembles an attempt to address any real, or apparent to the appellant, reasons he lost his case. Whether or not it is credible, none of it, in our view, could lead to a different verdict

Conclusion on receipt of further evidence

61. For the above reasons, “special grounds” have not been established and the application to tender further evidence should be rejected.

The Notice of Appeal

62. The notice of appeal contains eleven grounds. The appellant’s written and oral submissions were essentially directed to the admission of further evidence, which we have addressed above. The submissions made by the appellant on the appeal grounds (on the assumption that the further evidence was not admitted) were brief.

Appellant’s submissions

63. The appellant submitted that:

1. in refusing to cover the appellant the respondent should have contemplated that the appellant would repair the damage himself and in the process would likely be injured; and

2. it was reasonably foreseeable that the appellant would have attempted to repair the damage himself in view of his “concern for the safety of his tenants occupying adjacent houses” and it was reasonably foreseeable that he may injure himself in the process of trying to “remedy or repair”.

64. Although they did not conform completely with the grounds of appeal, the appellant submitted that the Court should take the following matters into account:

1. the respondent sent a claims assessment officer to the Lurnea property on 30 December 2009 and again on 12 January 2010 who, as an agent of the respondent on both occasions “confirmed” that the claim would not succeed because the carport was not approved by the local authority;

2. accordingly, the appellant attempted to repair the carport because of his concern for the tenants. The tenants used the carport for recreational purposes, and a billiard table was housed there;

3. the appellant was self-represented in the court below. Irrelevant medical reports were tendered. The appellant was not in any position to object to documents being tendered as he is not a lawyer;

4. the respondent allegedly owed the appellant “a duty of care to cover for the damage to the car-port”;

5. the fact that the carport was not approved by the Council should not have been relied upon by the respondent as it was there when the appellant purchased the Lurnea property from the previous registered proprietor;

6. it was reasonably foreseeable to the respondent that the appellant would attempt to repair the carport in the event that the respondent refused indemnity under the policy;

7. it was reasonably foreseeable to the respondent that in the process of trying to repair the carport, the appellant may have suffered injury;

8. the appellant relied on the statement of the respondent’s agent who came to inspect the damage to the carport and “confirmed” that the claim would not be covered under the policy; and

9. the respondent should be liable because the appellant did not properly prepare for the trial before the lower court because of the negligent misstatement of the respondent’s agent who told the appellant that the case “will be settled” without the necessity of going into a full trial before the lower court. The appellant referred to Hedley Byrne & Co Ltd v Heller & Partners Ltd (Hedley Byrne). [31]

   31. [1964] AC 465.

65. We will return to these matters after addressing each of the grounds of appeal pleaded.

Consideration of the grounds of appeal

Ground 1 – error in finding no injury to the wrists as a result of the fall that occurred on 14 January 2010

66. We have set out above the state of evidence at the trial on this issue. There was a complete lack of contemporaneous evidence of complaint about an injury to the appellant’s wrists until 6 months after the fall. The cogency of such evidence, particularly when the primary judge doubts a witness’ credibility is well-recognised. [32]

    32. See Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

67. The medical evidence before the primary judge has been set out in [44] above.

68. The appellant bore the onus of proving that he suffered a wrist injury in a fall in January 2010 whilst attempting to repair the carport. Far from proving that he suffered such an injury in January 2010, the evidence before the primary judge was compelling that the appellant suffered any potentially relevant injury to his wrists some considerable time before January 2010.

69. To the extent that the appellant relied on his own evidence of the fall and its aftermath, the primary judge formed the view that the appellant was an unreliable witness with a poor memory. The appellant’s evidence could only be accepted when corroborated. The appellant conceded at various points in his evidence at trial that he had trouble with his memory. The primary judge was entitled to take the view that the appellant lacked reliability and to reject his account of injury to his wrists suffered in a fall in January 2010.

70. Ground 1 should be rejected.

Ground 2 – error in finding that the injury to the wrists occurred before January 2010

71. In addition to the contemporaneous documents, the primary judge accepted the evidence of Dr Beard and Dr Millons regarding this issue. We have set that out in [44] above. Dr Beard and Dr Millons each opined that the appellant’s wrist injuries predated the fall in January 2010. Further, each noted that wrist injuries of this kind generally predate the onset of symptoms and that osteoarthritis is inevitable.

72. There was no reasoned medical opinion in evidence before the primary judge supporting the proposition that any damage to the appellant’s wrists (including by exacerbation of an existing injury) was caused by a fall in January 2010.

73. That conclusion is fatal to this ground of appeal. Ground 2 should be rejected.

Ground 3 – error in finding that breach of contract occurred on 18 January 2010 at the earliest

74. Initially the appellant gave evidence that he was notified that his claim was denied on 18 January 2010. Subsequently the appellant changed his evidence, asserting that a builder told him on 30 December 2009 that his claim would be denied. The assessor’s report from Johns Lyng Group Pty Ltd (who attended the property on 30 December 2009) does not support the appellant’s claim that on 30 December 2009 he was told that his claim “would be denied”. While it is true that the report stated that following Mr Reid’s inspection on 30 December 2009, it was “recommend[ed] the claim not be accepted [by the respondent] as the structure was never built to standards or approved by council and was destined to fail in strong winds”, Mr Reid was not in a position to decide on indemnity and, at best, could have passed on information about his proposed or likely recommendation to the insurer.

75. The appellant later gave evidence that he was waiting for a response at the time he performed repair works (which was consistent with his original evidence). He said that at the time he was performing repair works he had already waited 17 days for a response from the respondent, which prompted him to fix the carport himself.

76. Further, in his written submissions the appellant said he performed the repairs to the carport “pending the determination of his claim”, which is consistent with his initial evidence.

77. The appellant accepted on at least three occasions before the primary judge that he was still waiting for a decision on cover at the time the accident occurred. It was thus open to the primary judge to find that, assuming there was a breach of contract, it first occurred on 18 January 2010, which was after the accident occurred.

78. Ground 3 should be rejected.

Ground 4 – error in preferring the medical notes and reports over the sworn evidence of the appellant

79. The sworn evidence of the appellant on the question as to whether he suffered any wrist injury as a result of his fall was as follows:

1. on 14 January 2010, when the appellant slipped off the ladder and fell, he ended up on the ground with his hands out causing damage to his wrists;

2. later that evening, following his discharge from Liverpool Hospital, the appellant’s wrists started to hurt;

3. after a week of no improvements in wrist pain, the appellant visited his general practitioner, Dr Yvonne Tambyrajah, who referred him to a specialist;

4. in late January 2010, the appellant was unable to return to work at Fairfield City Council because his wrists were extremely sore and he was unable to use them at all;

5. in August 2012, Associate Professor Gumley provided the appellant with splints for his wrists but there were no improvements;

6. in June 2012, the appellant had “k wires” inserted into his right wrist;

7. since July 2012, the appellant had been receiving physiotherapy on his right wrist;

8. in June 2013, the appellant had “k wires” inserted into his left wrist; and

9. the pain in his wrists had been mitigated since the operations but the appellant continues to have limited movements in both wrists and is unable to return to work as a mechanic.

80. The appellant was cross-examined about giving different accounts to doctors about how his injury occurred. [33] The primary judge found that the contemporaneous notes of his treating general practitioner of 16, 18, 19 January 2010 and 4 February 2010 recorded no complaint of injury concerning the wrist. Further, there was no suggestion of such an injury in the records of Dr Holliday on 21 January 2010, nor in the claim form submitted to Tower Australia Limited on 16 March 2010. [34]

    33.    Primary judgment (at 14).

    34.    Ibid (at 24).

81. The primary judge did not err in relying on and preferring contemporaneous documents containing the appellant’s own reports of his symptoms and condition at and shortly after the time of the accident.

82. To the extent that the medical evidence before the primary judge referred to the injuries being suffered as a result of the fall, the primary judge was correct to accord that evidence little weight because it appeared to assume the history provided by the patient and did not disclose any reasoning process. No medical expertise was brought to bear in making those statements.

83. Finally, as we have earlier said, Dr Beard and Dr Millons each opined that the appellant’s wrist injuries predated the fall in January 2010. In the face of those opinions, there was no error by the primary judge in preferring the contemporaneous documents containing information supplied by the appellant which was wholly consistent with that being the position.

84. Ground 4 should be rejected.

Ground 5 – error in coming to incorrect conclusions from the medical evidence

85. This ground contains a summary of the appellant’s complaints.

86. For the reasons given above the primary judge did not err in the way he treated the medical evidence. His Honour’s conclusion, on the evidence before him, was compelling.

87. Ground 5 should be rejected.

Ground 6 – error in finding medical certificates did not comply with Makita (Australia) Pty Ltd v Sprowles

88. Exhibit X, to which this ground of appeal is addressed, consisted of 6 medical certificates or statements from various sources all apparently prepared for the purposes of explaining to an employer why a worker would be unable to attend his or her usual employment. Insofar as they are dated, the earliest in point of time is that on the letterhead of Sydney Hospital and Sydney Eye Hospital dated 4 October 2011, apparently signed by Associate Professor Gumley recording that the appellant would be unfit for work from the date of the certificate until after surgery. Insofar as the author’s handwriting can be deciphered it identified the reason for this inability to attend work as being “has bilaterial wrist pain with SLAC … arthritis requiring bilateral (R first) … and ? bone fusion?”

89. Two other medical attendant’s statements, each emanating from the Macquarie Medical Centre which, as we have said, appears to be the general practitioner practice the appellant attends, and clearly post-dating Associate Professor Gumley’s medical certificate, record the injury to the appellant’s wrists, the fact that he is awaiting surgery and, in each case, attribute the injuries to the fall from the ladder.

90. The next, in point of time, is another document headed “Medical Attendant’s Statement” in this case apparently signed by Dr Kannangara on 26 November 2012 which recorded that the appellant had had surgery on 18 June 2012, on his right wrist and was awaiting yet another operation on his left wrist and noted under the heading “Description of Injuries”, “fell on 14th January 2010 and hurt both wrists”.

91. Finally, there were two undated such statements, one apparently prepared while the appellant was still awaiting surgery which described the nature of his wrist injuries and connected them with the fall on 14 January 2010. In this category, and apparently following all surgery, Associate Professor Gumley prepared a “medical attendant’s statement” which described the surgical procedures he had performed and, further, recorded injury date “14 January 2010”.

92. There were two other documents of a medical nature in Exhibit X, neither of which contained any apparently relevant evidence: one a receipt from a Dr Nicholas Smith for a consultation with the appellant on 23 February 2012, the second on the letterhead of NSW Health Facility dated 16 October 2012 merely recorded that the appellant was awaiting surgery on his left wrist and the recovery period.

93. The primary judge admitted these documents on the following conditions:

1. the weight given to them was to be determined in the light of the facts that his Honour would ultimately find;

2. the medical history contained in the evidence would be taken to be evidence of the history given and not of the truth of what was asserted in that history; and

3. to the extent that the documents contained opinions, those opinions were to be assessed and weighed in the light of other evidence and the reasoning process, if any, that could be divined from them, it being a relevant and appropriate consideration in assessing medical opinion evidence to take into account the extent to which the Makita principles have been complied with.

94. As we have said, this material included brief handwritten notes by various doctors of medical attendances, and medical certificates from Sydney Hospital, which the primary judge concluded, at their highest, appeared to assume the correctness of the medical history given by the appellant for any report or opinion expressed. [35] His Honour correctly found that no reasoning process supported the statements contained in Exhibit X.

    35.    Ibid (at 25).

95. In Makita, [36] the authority to which the primary judge referred in rejecting this material as affording any cogent evidence, Heydon JA (as his Honour then was) gave a detailed summary of the matters which must be established to render expert opinion evidence admissible or, to at least carry some weight. Those matters included, in short, a reasoning process underlying the expert opinion to ensure that it is “based on specialised expert knowledge [rather than being] to use Gleeson CJ's characterisation of the evidence in HG v R,[37] on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).”

    36.    (at [85]).

    37. (1999) 197 CLR 414; [1999] HCA 2 (HG).

96. As Heydon JA explained, [38] the common law principles concerning the admissibility of expert opinion evidence find reflection in, among other provisions, s 79(1) of the Evidence Act 1995 (NSW). This section provides:

“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

38.    Makita (at [83] – [84]).

97. In HG, Gleeson CJ pointed out that:

“[39] … An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question … the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, [s 79] requires that the opinion is presented in a form which makes it possible to answer that question.”

98. The plurality in Dasreef Pty Ltd v Hawchar, [39] emphasised what was said by Gleeson CJ in HG (and by Heydon JA in Makita) and held, in relation to the admissibility of opinion evidence, that it was to be determined by application of:

“…the requirements of the Evidence Act … [and] that it is ordinarily the case, as Heydon JA said in Makita, that ‘the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded’.”

39. (2011) 243 CLR 588; [2011] HCA 21 (at [37]) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

99. None of the medical statements and/or certificates in Exhibit X explained how it was that the expert's field of “specialised knowledge” in which the witness was expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applied to the facts assumed or observed so as to produce the opinion propounded. This is, no doubt, because in each case, the document was a medical certificate intended for use in an employment rather than a curial context.

100. The medical certificates were in our view not admissible under s 79 and, once admitted, were correctly given little weight by the primary judge.

101. In addition, as the primary judge ruled, consistently with s 76(1) of the Evidence Act, when dealing with the admissibility of the medical history contained in the documents in Exhibit X, none of the certificates were admissible to prove the existence of a fact about the existence of which the opinion was expressed (there was no attempt to establish any of the medical statements fell within s 76(2)).

102. Accordingly, ground 6 should be rejected.

Ground 7 – error in not drawing a Jones v Dunkel inference

103. The primary judge did not err in not drawing a Jones v Dunkel inference from the respondent’s failure to call Mr Reid, from Johns Lyng Group Pty Ltd who initially assessed the claim.

104. This was a case which was conducted over four consecutive days in the District Court. The first time an issue arose as to what Mr Reid said to the appellant was during by the appellant’s oral evidence – prior to that there was no indication that Mr Reid was a potentially relevant witness, as the conversation with the builder was never pleaded or particularised in the statement of claim. Nor was a conversation with Mr Reid on this topic referred to in the appellant’s two affidavits sworn 10 May 2014 and 13 November 2014.

105. Further, the appellant accepted on at least three occasions before the primary judge that he was still waiting for a decision on cover at the time the accident occurred.

106. In circumstances where the appellant gave such evidence, this was not a case in which it was to be expected that Mr Reid would be called in the respondent’s case. [40] It was not an error in the circumstances of this case for the primary judge to fail to draw a Jones v Dunkel inference.

     40. See Payne v Parker [1976] 1 NSWLR 191 (at 201); Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 (at [169], [264]).

107. Given the state of the evidence before the primary judge, at best for the appellant, his Honour could have drawn an inference that Mr Reid’s evidence would not have assisted the respondent’s case. By reason of the appellant’s evidence and the burden of proof, such an inference could not have made any material difference to the outcome of the case.

108. Ground 7 should be rejected.

Ground 8 – error in finding no breach of duty of good faith

109. An insurer’s duty of good faith is not limited to acting honestly. We are prepared to accept that, as an incident of the insurer's duty of good faith in this case, the respondent was obliged to determine a claim for indemnity in a timely manner and without due delay. [41]

     41. CGU Insurance Limited v AMP Financial Planning Pty Ltd (2007) 235 CLR 1; [2007] HCA 36 (CGU v AMP) (at [259]) per Callinan and Heydon JJ; (at [179]-[180]) per Kirby J (in dissent as to the result); cf (at [15] – [16]) per Gleeson CJ and Crennan J.

110. In CGU v AMP [42] Gleeson CJ and Crennan J said (footnotes omitted):

“[15]   We accept the wider view of the requirement of utmost good faith … in preference to the view that absence of good faith is limited to dishonesty. In particular, we accept that utmost good faith may require an insurer to act with due regard to the legitimate interests of an insured, as well as to its own interests. The classic example of an insured’s obligation of utmost good faith is a requirement of full disclosure to an insurer, that is to say, a requirement to pay regard to the legitimate interests of the insurer. Conversely, an insurer’s statutory obligation to act with utmost good faith may require an insurer to act, consistently with commercial standards of decency and fairness, with due regard to the interests of the insured. Such an obligation may well affect the conduct of an insurer in making a timely response to a claim for indemnity.”

42.    (at [15]).

111. At [257] Callinan and Heydon JJ said:

“[257] At the outset we should say that we agree with the Chief Justice and Crennan J that a lack of utmost good faith is not to be equated with dishonesty only. The analogy may not be taken too far, but the sort of conduct that might constitute an absence of utmost good faith may have elements in common with an absence of clean hands according to equitable doctrine which requires that a plaintiff seeking relief not himself be guilty of tainted relevant conduct. We have referred to the doctrine of clean hands because, as with another equitable doctrine, that he who seeks equity must do equity, it invokes notions of reciprocity which are of relevance here. That is not to say that conduct falling short of actual impropriety might not constitute an absence of utmost good faith of the kind which the Insurance [Contracts] Act demands. Something less than that might well do so. Utmost good faith will usually require something more than passivity: it will usually require affirmative or positive action on the part of a person owing a duty of it. It is not necessary, however for the purposes of this case, to attempt any comprehensive definition of the duty, or to canvass the ranges of conduct which might fall within, or outside s 13 of the Insurance [Contracts] Act.”

112. There was evidence that by 18 January 2010 the respondent had advice from a builder and an assessor that the carport was not compliant with local council regulations. [43] As is apparent from the alacrity with which the respondent attended the appellant’s property after his claim was made,[44] during the relevant period (before the fall on 14 January 2010), the respondent was working assiduously to put itself in a position to make a decision about cover under the policy.

     43.    Primary judgment (at 26 – 27).

     44. See [3] above.

113. In the circumstances of this case, the primary judge did not err in failing to find that the respondent breached its obligation of good faith, in failing to determine the claim for indemnity within a reasonable time. Given the state of information it had, and the advice it had received, it was not unreasonable for the insurer to consider its position for just over two weeks during the annual holiday period between 29 December 2009 (the date of the claim) and 14 January 2010 (the date of the fall).

114. Ground 8 should be rejected.

Ground 9 – error in finding damage too remote

115. The test for remoteness in contractual damages in Hadley v Baxendale,[45] was explained by the plurality in European Bank Ltd v Evans [46] as follows:

“The formulation of the rule in Hadley v Baxendale states that the entitlement of the plaintiff to recover such damages as arise naturally, that is, according to the usual course of things, from the breach of contract, or such damages as may reasonably be supposed to have been in the contemplation of both parties concerned at the time they made the contract as the probable result of the breach.”

45. (1854) 9 Ex 341; 156 ER 145.

46. (2010) 240 CLR 432; [2010] HCA 6 (at [13]) per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

116. The primary judge did not err in failing to conclude that it was in the usual course of things that someone will suffer personal injury as a result of a breach of an insurance contract providing coverage with respect to property damage. The insurer’s obligation was to indemnify the appellant for insured loss or damage to property by paying an amount which would have that consequence. Ordinarily that amount would be calculated as the cost of repairing or reinstating the property lost or damaged, or by reference to the diminution in the value of that property. The parties would reasonably contemplate that an insured would suffer loss by being kept out of that money and thus be entitled to interest by way of damages. It would not reasonably be contemplated that the insured would determine to undertake repair work for him or herself in the absence of timely payment, in the expectation that any personal injuries sustained by his or her doing would also be for the account of the insurer.

117. As to the second limb, the circumstances that the appellant would attempt to self-repair the carport and suffer personal injury in so doing were not reasonably within the contemplation of the parties at the time of contracting. The primary judge did not err in failing to find to the contrary. There was no suggestion in the evidence that the appellant was qualified to undertake those repairs, or that it was proposed, before the insurance was arranged, that he might do so at the risk of the insurer.

118. The primary judge did not err in concluding that the damages claimed were too remote.

119. Ground 9 should be rejected.

Ground 10 – the primary judge erred in finding witnesses were not available

120. This ground is not sustainable because the primary judge made no such finding. Affidavits of Mr Khan and Ms Rajpati were read. They were not cross-examined. The primary judge had appropriate regard to their evidence. [47]

     47.    Primary judgment (at 16 – 17).

121. Ground 10 should be rejected.

Ground 11 – error in finding no evidence to substantiate property damage loss exceeding $11,000

122. The appellant claimed $18,800 as the cost of repairing property damage. The primary judge found that there was no evidence to support a claim in excess of the amount of $11,000 already paid by the respondent. No error has been shown in that conclusion.

123. Ground 11 should be rejected.

Remaining submissions not the subject of a ground of appeal

124. The appellant also raised several matters which were not the subject of the notice of appeal. They should be rejected for that reason but a little more needs be said about three of the matters raised.

125. First, the appellant complained about his self-representation in the court below. The primary judge was astute to ensure that the appellant was afforded considerable latitude in the conduct of his case and in the tender of evidence, allowing the tender of Exhibit X after the close of evidence and during the respondent’s final submissions. As to the medical evidence which was tendered, none of the material relied upon by the primary judge was “irrelevant”. Much of it was tendered by the appellant himself. All of that evidence would have been admitted if the appellant was represented. No unfairness was occasioned to the appellant in this regard.

126. Secondly, the submission that the respondent owed the appellant “a duty of care to cover for the damage to the car-port” must be rejected. No such claim was pleaded. Questions of considerable complexity involving, among other matters, provisions of the Civil Liability Act 2002 (NSW) would be raised by such a case. Those questions could have been addressed by evidence but were not. The respondent would be denied procedural fairness if such a case was permitted on appeal.

127. Thirdly, to the extent that the appellant sought to rely, as a separate cause of action, upon an allegedly negligent misstatement made by the respondent’s agent who told the appellant that the case “will be settled” without the necessity of going into a full trial, such a claim was not pleaded and should not be permitted on appeal. Further, even if permitted, that case was not the subject of evidence about the steps the appellant could or would have taken which would have put him in any different position to the one he otherwise faced at trial. The appellant’s written submission based on Hedley Byrne should be rejected.

Conclusion and orders

128. The application for leave to adduce further evidence on the appeal should be dismissed with costs. An extension of time to file the notice of appeal should be granted but the appeal should be dismissed with costs.

129. Accordingly the Court makes the following orders:

1. Dismiss the notice of motion filed 11 September 2015.

2. Extend the time for filing the notice of appeal to 11 September 2015.

3. Appeal dismissed.

4. Appellant to pay the respondent’s costs of the notice of motion and the appeal as agreed or assessed.

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Endnotes

Decision last updated: 24 March 2017