Walker Corporation Pty Ltd v Liu

Grounds of appeal 28In its original summons, the plaintiff relied upon three grounds of appeal. A fourth ground was added by leave at the conclusion of the hearing before me. It is convenient to address that ground first. 29The fourth ground of appeal is: His Honour erred in law by allowing the case to be run contrary to the pleadings filed in the court below. 30The burden of the submissions put in support of that ground was that, by his defence filed 28 September 2011, the defendant had not put the plaintiff on notice that causation was in contest. The particulars supplied in the defence were directed only to the reasonableness of the repair costs claimed, not to the issue of causation. There was no specific denial that the damage claimed was caused by the accident. 31At the hearing of the appeal, Mr Carolan frankly acknowledged that there was only a general denial of liability for the damage claimed and no specific contention in the pleading as to causation. In fairness to the defendant, however, it may be observed that the statement of claim itself contained no express averment that the damage repaired was damage caused by the accident and no particularisation of the damage in question (except for the specification of the sum claimed). 32So far as the evidence before me reveals, the first specification by the plaintiff of the property damage for which compensation was claimed was contained in Mr Horton's first affidavit. Upon service of Mr Christenson's first report, the plaintiff can have been in no doubt that the defendant took issue with the causal connection between the damage addressed in that affidavit and the accident in December 2010. As already noted, Mr Horton's second affidavit expressly responded to Mr Christenson's reports. 33At the hearing of the appeal Mr Renshaw, who appeared for the plaintiff, relied on the decisions of this Court in Fung v Stocovaz [2006] NSWSC 1345 per Patton AJ and on appeal in Stocovaz v Fung [2007] NSWCA 199, to which he referred in submissions as "protocol authorities" (at T29.49). Mr Renshaw submitted that the effect of those decisions is that, in litigation of the kind in the proceedings below, "the quotation is prima facie evidence of the fact and it is then incumbent upon a defendant to refute that it is not within the range" (proceedings before me at T33.49 to 34.2). Mr Renshaw went so far as to submit that Mr Carolan was under an obligation (presumably as an aspect of his duty as an officer of the court) to draw those authorities to the attention of the Magistrate. 34With unfeigned respect to Mr Renshaw, I think that submission proceeds on a misapprehension as to the effect of the decision at first instance and in the Court of Appeal in Stocovaz. The Stocovaz proceedings were removed from the Local Court to this Court as a test case. As recorded by Handley AJA in the decision of the Court of Appeal at [29], the Local Court had been "flooded with small claims of this kind and the former practice of motor vehicle insurers avoiding such litigation by entering into knock for knock agreements has been abandoned". 35The questions removed for determination in this Court were: (1) is the plaintiff entitled to damages from the defendant which indemnify him for the actual cost of repairs to the motor vehicle referred to in the estimate; (2) if so, can the defendant's liability for damages to indemnify the plaintiff for the actual cost of repairs to the motor vehicle be reduced to the extent of the actual cost of repair: (i) were not fair and reasonable; and/or (ii) were extravagant. 36Those questions were clearly formulated on the premise that there was no issue in the proceedings as to whether the relevant quotation was for repair of the damage caused by the defendant's negligence. Nothing in any of the several judgments of Patton AJ at first instance or Basten JA or Handley AJA in the Court of Appeal suggests that it does not remain open to a defendant to dispute causation. It is doubtful whether a judicial decision could hold by way of binding principle that parties in particular kinds of litigation are precluded by judicially-stated protocol from defending any particular claim on its merits but in any event that is not what the decisions in Stocovaz purport to do. 37In the present case, the evidence established that the driver of the plaintiff's car had taken the car to a repairer the day after the accident but there was no evidence as to what occurred on that occasion. The quotation was provided over 3 months later. Its author was not called. There was no evidence to connect the quotation with any inspection undertaken close to the time of the accident. Those matters were relevant to the issue of causation, an issue on which the plaintiff bore the onus of proof in circumstances where the defendant was not put on notice of any claim until after the damage in question had been repaired. 38Further, Mr Carolan was briefed with the opinion of an expert who concluded, after inspection of both cars, that the repair costs claimed did not relate to damage caused by the accident. 39In those circumstances, I unequivocally reject the criticism directed at Mr Carolan for not having drawn the Stocovaz authorities to the Magistrate's attention. No binding principle stated in those authorities foreclosed the course taken by him in the Local Court. The transcript of the proceedings in that Court reveals, consistently with my experience in this Court, that Mr Carolan conducted a robust defence of the claim whilst acting properly and fairly throughout. 40Having regard to the generality with which the plaintiff's cause of action was pleaded in the statement of claim and the course of the evidence outlined in detail above, I am not persuaded that the Magistrate erred in law by allowing the defendant to run his case on the basis that there was an issue of fact as to whether the proposed repairs set out in the quotation related to damage caused by the accident. 41It is convenient to deal with the remaining grounds in the order in which they were addressed by counsel for the plaintiff. 42Ground 2 is: His Honour's decision to refuse to allow the plaintiff the opportunity to lead admissible evidence on quantum on the basis that the evidence did not refer to the expert witness code in circumstances where the affidavits objected to had been served prior to hearing on the defendant and the defendant had raised no objection prior to hearing; and in circumstances where the deponent swore a subsequent affidavit referring to the expert witness code and was available in court for cross-examination; was a decision which was so unreasonable that no reasonable decision maker would have made it and, thereby, constituted an error of law. 43The ground assumes as a premise that Mr Horton's second affidavit was "admissible evidence on quantum". It is important to note in that context that, while the affidavit responded to Mr Christenson's opinions as to quantum, it did not independently prove the quantum of the plaintiff's claim. That was addressed in the first affidavit, the critical parts of which were rejected for reasons unrelated to the witness's failure to comply with the procedural rules relating to the evidence of expert witnesses. 44In any event, I am not persuaded that there was an error of law as alleged. Rule 31.23 of the Uniform Civil Procedure Rules 2005 provides: (1) An expert witness must comply with the code of conduct set out in Schedule 7. (2) As soon as practicable after an expert witness is engaged or appointed: (a) in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or (b) in the case of an expert witness appointed by the court, such of the affected parties as the court may direct, must provide the expert witness with a copy of the code of conduct. (3) Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it. (4) Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert's report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it. 45As already noted, Mr Horton's affidavits did not contain the acknowledgment referred to in subrule (3). They were accordingly not to be admitted (even if admissible in accordance with the provisions of the Evidence Act 1995) unless the court "otherwise ordered". Counsel for the plaintiff in the Local Court (not Mr Renshaw) made no application for such an order in respect of the second affidavit and did not even seek to remind the Magistrate of the terms of the rule. 46Mr Renshaw nonetheless submitted in this Court that the Magistrate's refusal to admit the affidavit was erroneous. He relied on the decision of the Court of Appeal in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [63] per Young JA; Beazley JA and Handley AJA agreeing at [21] and [80] respectively. 47The error established in that appeal was that there was not a fair trial of the appellant's claim: at [39] and [71]. One of the factors contributing to that conclusion was the trial judge's refusal to admit expert reports relied upon by a self-represented litigant on the basis that the reports did not contain the necessary acknowledgment. That ruling was made notwithstanding the fact that the litigant had, upon being notified before the trial of an objection on that basis, served supplementary reports indicating that the experts had since read the Code and that their view remained the same. Further, the experts had subsequently conferred with the respondent's experts and prepared a joint report to the court. 48In rejecting the reports, the trial judge (at [57]) applied the following principles: i. Unless the Court "otherwise orders", the reports not containing the acknowledgement that the expert agrees to be bound by the expert code of conduct should not be admitted into evidence (UCPR 31.23(3)); ii. The Court must be satisfied that there are "exceptional circumstances" justifying the admission of the reports [Authorities group 1 cited]; iii. In preparing reports without having agreed to be bound by the code of conduct, there is a real risk that the expert will have committed to a particular form of opinion which an ex post facto adoption of the code cannot cure [Authorities group 2 cited]... 49The Court of Appeal held (at [62]) that, in requiring the establishment of "exceptional circumstances", the judge applied the wrong test. 50The passage of the judgment relied upon by Mr Renshaw in the present appeal concerned the third principle stated by the trial judge (as to the "real risk that the expert will have committed to a particular form of opinion which an ex post facto adoption of the code cannot cure"). Young JA said at [63]: Principle iii enunciated by the primary judge has some validity, but it must not be elevated into a general rule. Each case must be considered on its merits. The Court may consider that the assumed "real risk" is non-existent or minor. If so, in the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence [emphasis added]. 51The underlined words were set out in the plaintiff's written submissions but were misquoted so as to state that the evidence must be admitted (in place of the words in the judgment that the evidence should be admitted). The difference is not insignificant. 52Importantly, and unsurprisingly, the case is not authority for the proposition that, in the circumstances identified at [63] of the judgment, it is an error of law to exclude a report which, according to the rules of court, may not be admitted unless the court otherwise orders, even where the party tendering the report makes no application for such an order. 53The Magistrate's remarks set out above disclose that his Honour was familiar with rule 31.23. His Honour did not explicitly refer to the discretion to admit the report notwithstanding the witness's failure to acknowledge the code. Nonetheless, the matters adverted to by the Magistrate were relevant to the exercise of that discretion. Specifically, his Honour referred to the fact that the affidavits had evidently been prepared by Mr Horton without having the expert witness code of conduct in mind. That was a reference to the risk which, in Hodder Rook, the Court of Appeal acknowledged has "some validity". Mr Horton's third affidavit annexing a copy of the Code simply stated that he had since read it and agreed to be bound by it. He did not state that he had applied the provisions of the code when preparing his affidavit responding to the opinion of Mr Christensen. He did not state that, having since been shown the Code, in fact he did abide by it in the preparation of his earlier affidavits, nor did he affirm the contents of those affidavits: cf Hodder Rook at [63]. 54Whilst the exclusion of the evidence was perhaps harsh in light of Mr Horton's availability to give oral evidence, I do not think it can be concluded that the only reasonable exercise of the discretion under r 31.23(3), the exercise of which grants an indulgence to a party who has failed to adhere to the rules in the first instance, was to admit Mr Horton's second affidavit. This was a very different case from the litigation considered in Hodder Rook. 55In any event, the principal difficulty for the plaintiff flowed from the exclusion of part of Mr Horton's first affidavit, which had nothing to do with the witness's failure to refer to the expert witness code of conduct. Following the exclusion of that evidence, there was no evidence to connect the extensive damage listed in the quotation dated 21 March 2011 with the accident which occurred on 13 December 2010. The admission of Mr Horton's second affidavit would not have cured that deficiency in proof of the plaintiff's case. I am not persuaded that the Magistrate erred as contended in ground 2. 56Ground 1 is: His Honour erred in law by failing to accord the plaintiff procedural fairness in that he entered a verdict for the plaintiff in the sum of $200 without allowing the plaintiff an opportunity to lead admissible evidence as to quantum. 57This ground must also be rejected, in my view. The basis for the Magistrate's decision was that the plaintiff had failed to prove causation because it had failed to prove the connection between the quote and the accident. In that context, the decision to award nominal damages in the sum of $200 was perhaps curious. It may have been more appropriate to enter judgment for the defendant. In any event, there was no denial of procedural fairness. Statements were exchanged in advance of the hearing. The defendant's statements made plain that an issue raised for the Court's determination at the hearing would be whether the damage repaired in March 2011 was caused by the accident in December 2010. It cannot be suggested that the Magistrate was obliged in the circumstances to grant an adjournment and in any event none was sought. 58Ground 3 is: His Honour erred in law by failing to give sufficient reasons for his assessment of quantum including for his rejection of unchallenged sworn affidavit evidence from the driver of the plaintiff's vehicle in relation to whether any subsequent accident had occurred. 59Some of the plaintiff's submissions in support of this ground have already been addressed in the context of the fourth ground of appeal considered above. Two points remain. 60First, the plaintiff submitted that the Magistrate failed in his reasons to have any regard to the evidence of Ms Walker. It was submitted in that context that the Magistrate's conclusion as to damages was not open on the evidence. That is a complaint of a different kind - it is not a complaint as to the adequacy of the reasons. In any event, having regard to the evidence of Mr Christenson, I would reject the contention that the Magistrate's conclusion was not open on the evidence. 61It remains, however, to consider the complaint as to the adequacy of the reasons. 62Ms Walker's affidavit stated: I am the main driver of this vehicle and believe at the time of the accident that the vehicle was in excellent condition and had not been involved in any accidents. It was also not involved in any accidents in the period between the date of the accident and when it was repaired. 63The Magistrate did not expressly refer to that passage of the affidavit. It was submitted that, having regard to that evidence and such of the evidence of Mr Horton as was admitted (including his statement that he did not find any damage he would consider unrelated to the accident), the matter must inevitably be remitted for a new trial. 64Mr Renshaw relied on the judgment of Meagher JA in Beale v GIO (1997) 48 NSWLR 430 at 443. His Honour there considered three fundamental elements of a statement of reasons. Mr Renshaw relied upon the first, which is that a judge should refer to relevant evidence. His Honour said: There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. 65Although the Magistrate did not set out the particular part of Ms Walker's affidavit set out above, his Honour did refer to her evidence in some detail, including her statements that there was a collision; that she heard "a crunch sound" and that she inspected the vehicle and observed that the rear bumper bar was pushed in, the paint was scratched and that there appeared to be damage under the vehicle. His Honour noted that she had not been cross-examined in relation to that evidence. 66The Magistrate returned to that issue later in his reasons, observing that the photographs taken by Mr Horton did not display any damage and did not display a bumper bar having been pushed in. In making those remarks, his Honour expressly noted the limitations of the photographic evidence. 67I am not persuaded that the Magistrate overlooked the evidence or failed to give consideration to it. It must be observed that the reasons were given ex tempore after a short adjournment on the day of the hearing. The evidence of Ms Walker supported the plaintiff's case, as far as it went, but it cannot be said to have definitively excluded the conclusion reached by the Magistrate, such that his Honour could only have reached that conclusion if he overlooked it. The reasons were by no means "so inadequate as to constitute a miscarriage of justice": cf Beale at 444.7. 68The second remaining point in support of ground 3 is that the Magistrate gave no proper reasons for his award of $200 by way of nominal damages. I do not think there is any substance in that complaint. Nominal damages are not inherently susceptible of any precise calculation. Before entering judgment in that sum, the Magistrate indicated his intention to award a nominal amount and asked counsel for the plaintiff whether he wished to address that issue. No submissions were made. In light of his Honour's conclusion as to causation, it would have been open to enter judgment for the defendant. I am not persuaded that any relief should now be granted on the basis contended for. 69Orders: (1)that the appeal be dismissed. (2)that the plaintiff pay the defendant's costs.

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