Walker Corporation Pty Ltd v Liu

Judgment 1HER HONOUR: This is an appeal from a decision of the Local Court sitting in its General Division. An appeal against such a decision may be brought as of right on a question of law: s 39 of the Local Court Act 2007. 2The proceedings in the Local Court arose out of a car accident in which the defendant's VW ran into the back of an Audi owned by the plaintiff company. The defendant admitted causing the collision and did not deny doing so negligently. He denied the particulars of damage claimed by the plaintiff. It will be necessary to return to the detail of the parties' respective positions on that issue. 3On the strength of the defendant's admission to causing the collision, the learned Magistrate was satisfied on the balance of probabilities that the collision was caused by the defendant's negligence. However, his Honour was not satisfied on the balance of probabilities that the damages claimed were attributable to damage caused in that collision. His Honour determined that there should be a verdict for the plaintiff in a nominal amount. Judgment was entered for the plaintiff in the sum of $200. 4The plaintiff appeals against that decision. Before turning to the grounds of appeal relied upon, it is necessary to explain the course of the proceedings in the Local Court. 5The accident occurred on 13 December 2010. The Audi was repaired some time in late March 2011. The defendant did not consider that there was any damage to the VW and did not require any repairs. 6The proceedings were commenced by statement of claim filed on 1 September 2011. The amount claimed for the repairs was $14,222.49. The cause of action was pleaded in short form. The pleading asserted that "the defendant, through his negligence, wholly caused or materially contributed to the collision". As already noted, the defendant admitted causing the collision, neither admitting nor denying doing so negligently. 7The balance of the statement of claim consisted of "particulars of negligence" and "particulars of damage". The particulars of damage did not identify the damage to the car but simply specified the amount claimed. The defendant responded to those particulars as follows: In relation to the particulars of damage pleaded in the statement of claim, the defendant denies the same. 8The denial was supported by particulars in which it was asserted that the repair costs claimed were excessive; that the repairs were exorbitant and that the repair costs were not fair and reasonable. There was no denial in terms that the property damage for which those repair costs were claimed was caused by the accident but that fact must be considered in the context that the damage to the car was not in fact particularised in the so-called particulars. 9That defence was filed on 28 September 2011. On 19 January 2012, the plaintiff served an affidavit sworn by a motor vehicle loss assessor, Mr Doug Horton. In paragraph 8 of his affidavit, Mr Horton annexed a detailed quotation in the sum of $14,674.5 for "repair of the damage caused by the accident". (The amount claimed in the statement of claim was slightly less, being the amount of an invoice for payment of $14,222.49). 10In paragraphs 9 and 10 of the affidavit, Mr Horton expressed the following opinions: I formed the view that the repairs detailed in [the quotation] related only to the repair of damage sustained in the subject accident to restore the plaintiff's vehicle to its pre-accident state. I formed the view that the cost quoted in [the quotation] was within the fair and reasonable range for the repair of the type of damage sustained in the accident and taking into account the particular make of vehicle owned by the plaintiff. 11In response to Mr Horton's affidavit, the defendant served a report dated 6 February 2012 from a loss assessor, Mr Brian Christenson. Mr Christenson stated that he had been requested to give an opinion on the following issues: (1) Whether the repairs claimed by the plaintiff arose out of the collision the subject of these proceedings; (2) Whether the damage alleged to have been sustained to the plaintiff's vehicle is consistent with the collision the subject of these proceedings. (3) Whether the damage alleged to have been sustained to the plaintiff's vehicle is consistent with the damage (or lack thereof) sustained to the defendant's vehicle. (4) Whether the costs of repairs claimed by the plaintiff are reasonable and if not what the reasonable amount should be. 12Mr Christenson had not had the opportunity to examine the plaintiff's Audi before it was repaired. He was able to examine it only in its repaired state (since the defendant had no notice of the plaintiff's claim until early May 2011, after the repairs had been carried out). He was able to inspect the defendant's VW, which he was informed had not had any work or repairs carried out on it since the accident. 13On the basis of a comparison between the damage claimed by the plaintiff as set out in the quotation and his inspection of the two cars, Mr Christenson expressed the opinion that the damage "sustained and repaired" to the Audi was "clearly not as a result of this accident". He answered the questions as to which his opinion had been sought as follows: Question 1: No Question 2: No Question 3: No - refer comments from above report Question 4: No, they are considered unreasonable, the reasonable cost is considered to be $1,335.80 net if a GST is applicable at $133.58. 14Mr Christenson provided a short supplementary report dated 29 February 2012 which summarised the findings of his earlier report. 15It is clear that the plaintiff must have been served with those reports in advance of the hearing, since Mr Horton prepared a further affidavit sworn 26 March 2012 in which he responded to them. 16Neither of Mr Horton's first two affidavits referred to the expert witness code of conduct set out in schedule 7 to the Uniform Civil Procedure Rules 2005. He sought to address that deficiency in a third affidavit sworn 3 April 2012 in the following terms: (i) I refer to my previous affidavits dated 19 January 2012 and 26 March 2012. (ii) I acknowledge that I have read and am bound by the expert witness code of conduct. Annexed to this affidavit and marked with the letter "A" is a true copy of the expert witness code of conduct. 17The proceedings were heard on 5 April 2012. The plaintiff read the affidavit of Ms Georgina Louise Walker, who was driving the plaintiff's Audi at the time of the accident. Ms Walker's affidavit was admitted without objection and she was not required for cross-examination. She stated that the accident occurred on 13 December 2010 when a car driven by the defendant collided into the rear of her car. She said that, at the time of the impact, she heard "a crunch sound". She said: I inspected the vehicle I was driving and observed that the rear bumper bar was pushed in, the paint was scratched and there appeared to be damage underneath the vehicle. 18Ms Walker stated that she took the car to Autohaus Prestige, Five Dock, for repair on 14 December 2010, the day after the accident. She gave no evidence as to what occurred at Autohaus Prestige on that date. However, she stated that she is the main driver of the Audi and that she did not believe it had been involved in any other accident before or after the collision with the defendant's car. 19Mr Horton's evidence was that he was allocated the job to assess damage to the Audi over 3 months later, on 18 March 2011. He carried out the inspection and prepared his motor vehicle assessment report on 21 March 2011. The quotation bore the same date. The invoice for the repairs claimed in the proceedings was dated 28 March 2011. 20There was no evidence in the plaintiff's case that any mechanic or assessor examined the car when Ms Walker took it to Autohaus Prestige on 14 December 2010. That was the basis for the objections taken to Mr Horton's first affidavit when counsel for the plaintiff sought to read it at the hearing in the Local Court. Specifically, it was submitted on behalf of the defendant that the quotation could not be proved through Mr Horton. Mr Carolan, who appeared for the defendant, said (at T3.17): What is recorded on that document [the quotation] is a series of observations about what was to be done to the particular vehicle. If those observations were to be made the subject of evidence they should have been provided by the repairer himself. So in other words there is no opportunity in the defendant to test any assertion of fact which is contained within that document, and so in my respectful submission it shouldn't be admitted as proof of damage. 21Counsel for the plaintiff responded that he should be given an opportunity "to go and obtain some evidence" on that issue. However, he did not seek an adjournment for that purpose. He then submitted that the defendant could have called the repairer himself. That submission overlooked the fact that the plaintiff bore the onus of proof on that issue. 22Ultimately, the Magistrate admitted the quotation "on a provisional basis" (T5.8). It is clear from the exchange preceding that ruling that the quotation was being admitted at that stage only as proof of the document Mr Horton received and not as proof of the damage caused by the accident. Its admission provisionally contemplated separate proof of its provenance but none was brought forward. Consistent with that ruling, the Magistrate excluded the part of paragraph 8 of Mr Horton's affidavit in which he described the quotation as being "for repair of the damage caused by the accident". 23Separately, the Magistrate rejected paragraphs 9 and 10 of the affidavit (set out above) on the basis that those paragraphs expressed an opinion without any foundation. That ruling was evidently also based on the absence of any proof that the proposed repairs listed in the quotation related to damage caused in the collision 3 months earlier. It is important to note that his Honour's rulings as to the first affidavit were made without reference to Mr Horton's failure to refer to the expert witness code of conduct. 24Separately, Mr Carolan objected to the whole of Mr Horton's second affidavit. To the extent that Mr Carolan was required to develop that objection, he submitted that the affidavit was argumentative and that Mr Horton was not an independent expert (since he is employed by Allianz, the insurer of the plaintiff). In the course of those submissions, Mr Carolan noted that Mr Horton had sworn a third affidavit purporting to adopt the expert code of conduct so as to apply it retrospectively to each of his earlier affidavits. The Magistrate said: I think it's too late now. It has to be done - these things have to be done with the expert code of conduct in mind, can't be applied in retrospect. He has made certain statements without it seems having it in mind and therefore and furthermore his expertise is not stated, his experience, specialisation is not stated. So I can't admit that. 25The second and third affidavits were rejected. Presumably in light of those rulings, although Mr Horton was made available for cross-examination, he was not cross-examined. 26Mr Carolan then read the affidavit of the defendant, Mr Liu. Mr Liu stated that the collision occurred when his car made "slight contact" with the plaintiff's car. He said that he inspected his car for damage and could not see any damage at all. He said "there was a small scratch" on the plaintiff's car. The affidavit was admitted without objection and there was no cross-examination (T8). 27The reports of Mr Christenson were also admitted without objection. Counsel for the plaintiff cross-examined Mr Christenson.