Warragamba Winery Pty Ltd v State of NSW

Judgment 1The fifteen plaintiffs in these proceedings had homes or businesses which were damaged or destroyed by a bushfire at one or other of Warragamba, Silverdale and Mulgoa, on 25 December 2001. They have sued the State Government for alleged wrongful acts by the National Parks and Wildlife Service and the New South Wales Rural Fire Service. They have also sued the Sydney Catchment Authority. They allege their very significant losses were due to negligence, breach of statutory duty and nuisance on the part of the two defendants. 2As against the National Parks and Wildlife Service and the Sydney Catchment Authority, the plaintiffs allege that they owed them a duty of care as occupiers. They do not allege the Rural Fire Service was an occupier, but they allege it owed them a general duty of care because of the functions it was performing and those functions which its statute obliged it to perform. 3The negligence is essentially put in two stages. At stage one, the negligence is said to be the failure by those three entities to assess the risk posed by a fire which started on 24 December 2001 at Mount Hall in the lower Blue Mountains, and the failure of the National Parks and Wildlife Service and the Rural Fire Service, whose obligation it was to fight the fire, to take proper steps to control it so it would not spread. 4The fifteen plaintiffs allege that had the defendants adequately assessed the risks posed by the fire, and done more to control it, they would have deployed greater resources to fighting and containing it than they did. They would have deployed resources as well, in Warragamba, Silverdale and Mulgoa, sufficient to protect their properties. 5A secondary part of the case, or stage two, if the plaintiffs fail to prove a breach of duty in the management and containment of the fire, is that both defendants, it is said, should have warned them that the fire was coming, so that they could take timely action to preserve their properties. I will be asked to find, on the balance of probabilities, in relation to each plaintiff, that if so warned, he she or it would have taken steps to protect property and would probably have succeeded in that endeavour. 6In preparation for the hearing, the solicitors acting for the plaintiffs have prepared, filed and served witness statements. As plaintiffs have been called, they have verified the statements and the statements have become exhibits. 7A number of plaintiffs have, in their statements, attempted to say what steps they would have taken if properly warned of the fire's danger. When this has occurred, the defendants have objected, on the basis that such evidence offends the provisions of section 5D(3) of the Civil Liability Act 2002. 8Mr Nock SC who, with Mr K Odgers, appears for the plaintiffs, maintains that although such evidence cannot be given in chief, there would be an unfairness to the plaintiffs if hypothetical questions were put to the plaintiffs in cross-examination, and he were not permitted to put alternative hypotheses in re-examination. 9One of the plaintiffs, Mr Lynch, gave evidence on 9 and 10 November 2011. He was asked by Mr King in cross-examination about his activities on the day of the fire. In re-examination, certain evidence was given, over objection, and I took it as evidence on the voir dire and said that I would adjourn the matter for argument on the issue and would then rule on the matter. My ruling may have some effect on other cases. 10Mr Lynch ran a printing business in Silverdale at the time of the fire, and his business premises were destroyed. Silverdale is very close to Warragamba. He lived in Warragamba but was not in Warragamba that day. He was having Christmas lunch elsewhere, with a relative. 11He was cross-examined by Mr King SC who, with Mr S Gregory, Ms C A Webster and Mr N Newton appears for the defendants. Although he had had a number of phone calls concerning the fire that day, the thrust of his evidence was that he had not travelled back to Silverdale to help save his property or, indeed, to see what was going on. 12On the causation issue, Mr King elicited from him evidence to the effect that he had had some drinks that day so he could not have driven back anyway. But he had learned whilst he was at lunch, which was at a place not a great distance from Silverdale, that some houses in Warragamba had been destroyed. He agreed that learning that had been a great reason to return to see whether his own property had been threatened. But he had made no enquiry as to whether anyone else present could legally drive and take him there. He conceded he knew that he lived in a bushfire-prone area and that fire activity could be unpredictable. He said, in effect, that his business had not been a concern, and that his situation had been monitored by telephone calls. 13Mr Lynch had given some evidence before an inquest into the fire. By reference to his evidence to the Coroner, Mr King questioned the adequacy of the telephone calls as at about 3.30pm as a means of making a competent assessment of the risk to his property. Then this evidence was given: "Q. It would have been sensible for you to get back to Warragamba and see whether your house or your business was threatened, wouldn't it?" A. No, my house was fine." Although Mr Nock submitted to me that Mr King had put a hypothetical question, I do not consider the question to be inadmissibly hypothetical. 14In re-examination, Mr Nock put to the witness this question: "Q. Mr King asked you, 'It would have been sensible for you to go back to Warragamba and see whether your house or your business were threatened'?" A. Yes. Q. If those phone calls had occurred at 8.30, what would have been your answer? A. I would have stayed at home. Q. And if those phone calls had been at 11am on Christmas morning? A. I would have stayed at home." 15At a later stage in the re-examination, Mr Nock asked Mr Lynch if he had received such calls at those times, that is at 9 and 11, from authorities such as police or the fire brigade, what he would have done. And, again, his response was he would have stayed at home. 16Strictly speaking, it seems to me, Mr Lynch's answers were not responsive, because he had been asked by Mr King whether it would have been sensible to do something rather than what he would have done. But he understood Mr Nock's questions as though he were being asked what he would have done in certain hypothetical situations. 17In written submissions provided to me by Mr Gregory, reliance was placed on section 5D(3) of the Civil Liability Act . He submitted the evidence Mr Nock wishes to have in on re-examination would be inconsistent with the clear terms of 5D(3), whose evident purpose is to exclude evidence given retrospectively, on the basis that there is great difficulty in counteracting hindsight bias which undermines the value of such testimony. 18Mr Nock, however, put to me that there is assistance for his position in section 39 of the Evidence Act 1995 which says that on re-examination: "(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination..." 19He referred me to paragraphs 628-629 from the Australian Law Reform Commission as to the reasons for re-examination, and to Hadid v Australis Media Limited (unreported, Sperling J, 5 November 1996) where his Honour cited a paragraph from Cross on Evidence at 17605 to the following effect: "The purpose of re-examination is not merely to remove ambiguities and uncertainties but it is allowed, whenever an answer in cross-examination would, unless supplemented or explained, leave the court with the impression of facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or an incomplete account of the truth as the witness is able to present it." 20Mr Nock also referred me to the 7th Edition of Uniform Evidence Law (Odgers), paragraph 1.2.3500, which says of re-examination: "Evidence allowed will be admissible even if it would have been irrelevant or otherwise inadmissible when examination-in-chief took place." 21However neither the Australian Law Reform Commission report, nor the extract from Cross, nor the extract from Odgers, deals precisely with section 5D(3). 22Prior to 2002, evidence of the type Mr Nock wants to get in could have got in. In that year, a report into the common law in New South Wales was conducted by a panel chaired by Ipp J, as he then was. It became known as the Ipp panel. And when it reported to the New South Wales government in that year, the panel said on this issue: "On the other hand, the panel is also of the view that the question of what the plaintiff would have done if the defendant had not been negligent should be decided on the basis of the circumstances of the case and without regard to the plaintiff's own testimony about what they would have done. The enormous difficulty of counteracting hindsight bias in this context undermines the value of such testimony. In practice, the judge's view of the plaintiff's credibility is likely to be determinative, regardless of relevant circumstantial evidence. As a result, such decisions tend to be very difficult to challenge successfully on appeal. We, therefore, recommend that in determining causation, any statement by the plaintiff about what they would have done if the negligence had not occurred should be inadmissible." 23Following that report, section 5D(3) was inserted in the Civil Liability Act and similar sections were enacted in other states and territories of Australia. The subsection itself is as follows: "5D(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in light of all the relevant circumstances subject to paragraph (b); and, (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible, except to the extent, if any, that the statement is against his or her interest." 24It has been said in a medical negligence context that a patient's assertion as to what he or she would have done in hypothetical circumstances may, of itself, carry little weight: Rosenberg v Percival (2001) 205 CLR 434 at paragraphs 15-17 per Gleeson CJ; paragraphs 44-45 per McHugh J; paragraphs 86-87 per Gummow J; paragraphs 157-158 per Kirby J; and paragraph 221 per Callahan J. 25In Elbourne v Gibbs [2006] NSWCA 127, another medical negligence case, at paragraph 67 Basten JA described evidence of what a patient would have done if warned of a medical risk as indisputably relevant. But as his Honour observed in Chamberlain v Ormsby , trading as Ormsby Flower [2005] NSWCA 454 at paragraph 137: "The test of causation is ultimately one to be determined on all the relevant material and not merely upon the assertion of the plaintiff as to what he or she would have done in hypothetical circumstances." 26See also Hancock v Arnold, Dodd v Arnold [2008] NSWCA 254 at 67 per Basten JA. 27In a non-professional context it has been held that the section applies as well: Telstra Corporation Limited v Bisley [2005] NSWCA 128 at [26] per Hodgson JA. 28There was consideration of the meaning of the word "statement" (see s 5D(3)(b)), in KT v PLG [2006] NSWSC 919, in particular at [42]-[44], where her Honour held it applied to what was said in evidence, as well as what was said out of court. Her Honour said (at [43]): "In my opinion subs 3(b) was intended to, and does, exclude direct evidence of what the plaintiff would have done if the first defendant had not failed in his duty to her." It is clear that section 5D(3) is to be given a broad interpretation. 29Mr King has this morning drawn my attention to Jeandin v Tzovaras [2011] NSWSC 1254, at paragraph 100, where McDougall J noted that s 5D(3) does not apply to statements against interest (see exceptions in (b)). 30The fact that the legislature specifically excluded the operation of s 5D(3) only to statements against interest, emphasises the breadth of reach of s 5D(3). 31There is, I think, no warrant to read down the provisions of s 5D(3) in the way Mr Nock submitted would be appropriate. He was unable to cite any authority for the proposition. I think that is not surprising, given the breadth of the words used. 32The approach he urged on me would, I think, be inconsistent with the section. Insofar as the evidence in re-examination would, but for s 5D(3) have been admissible, I consider that I should not allow the evidence in. 33Accordingly, I disallow the evidence on the voir dire identified as the hypothetical evidence.