Category Archives: evidence

The evidence is the only truth we know

One of the things non-lawyers find most problematic about litigation is the notion of truth in the courtroom. Litigation lawyers on the other hand, especially the battle-weary ones, realise how fraught, and indeed relative, such a notion can be.


It is perhaps one of the most thorny discussions one can have with a client, which ordinarily goes something like, ‘I know what you’re telling me is the truth but the evidence points in another direction…perhaps we should settle the case.”


It is this gap between what the evidence bespeaks and the version of events embraced by each party, which appears at the root of many of the cases that reach trial. In my experience, it is only the boldest of litigants who are willing to lie under oath and ordinarily it is more likely they are simply convinced of their own version over that of the other side.


Sometimes a particular version of events will seem plausible yet the way the evidence unfolds, especially in the hands of a capable advocate, casts some doubt on the favoured scenario. This is where the lay-person and the lawyer diverge.


Truth is as much a feeling for a non-lawyer, one uncorrupted by the analytical mindset that necessarily becomes a part of who we are as lawyers. The lawyer says that where a detailed analysis of the evidence casts sufficient doubt on that which may seem the most likely version of events, it cannot be accepted by the court, viz, it isn’t true.


Judges can also be affected by the same kind of ‘gut-feel’ that one version of events gives over the other. However, this can be the root of a host of problems when from this starting point they then construct their reasons. The clinical ravages of the appellate process await.


The recent case of Bradley v Matloob [2015] NSWCA 239 was the one that got me thinking about all of this. The plaintiff was approaching a set of traffic lights driving along a dual carriageway when a car travelling in the opposite direction made a right hand turn into her path. Whilst the plaintiff managed to avoid a collision with the vehicle, she lost control and collided with a truck further along the road causing her serious injury.


About 15-20 metres away there was an eye-witness to the accident (who we’ll call “P”). P said that the other car was a ‘tannish brown’ Ford with a black sun grille installed across the outside of its back window. P also said that as the Ford drove off along the street into which it had made its turn he decided to follow it until he observed it turn into a nearby factory unit. About 10 minutes later P drove into the factory unit and found a car that he thought was the same car as he had seen earlier and took its registration. He also drove around the whole car park to ensure there were no other cars like it. The registration P recorded was that of the first defendant’s car.


Seems pretty compelling at first glance. Yet the owner of the vehicle matching that registration, Mr Bradley, denied any knowledge of the incident when interviewed by the police.


The plaintiff also sued the Nominal Defendant, which for the uninitiated is a statutory body funded by a levy on CTP premiums to compensate the victims of car accidents where the negligent party is either uninsured or cannot be identified. So the dispute as to who should pay came down to one between the Nominal Defendant and Mr Bradley.


At the trial it was never suggested to Mr Bradley that he had lied about his involvement in the incident. Instead, the way it was put to him in cross-examination was:


“Q: If you had come within a metre of an oncoming car as you made a right hand turn that would be something that you would be well and truly be aware of?


A: Yes.”


The witness P’s evidence however, was heavily challenged in cross-examination, revealing two matters that enabled his reliability to be questioned:


  • He was shown pictures of Ford vehicles of clearly differing colours yet he described them both in the same way as he described the plaintiff’s vehicle, ie. ‘tannish’ or ‘tannish brown’ (at one stage, when shown a photo of Mr Bradley’s vehicle, P agreed that it was not the offending vehicle, though this was tidied up in re-examination by his barrister); and
  • He made repeated reference to the black grille on the rear window of the car he saw, yet the plaintiff’s car did not have one installed.


Both of these things, the trial judge was willing to overlook. However, here’s the rub, as it was skilfully submitted by Mr Bradley’s barrister – to find Mr Bradley liable the judge would have to have find that his evidence was not credible. Furthermore, the Court would have to find that Mr Bradley had in fact lied to the police shortly after the incident (and in court) in saying he had no knowledge of it.


Whether he was fully cognisant of the need to do so or not, the trial judge largely avoided this submission, which lay somewhat inconveniently in the way of the account he wanted to accept, ie. that of P. The knock-on effect of this failing was in Beech-Jones J’s view (with Leeming JA in agreement) to render the trial judge’s reasons inadequate by failing to ‘engage with, or grapple or wrestle with, the cases presented by each party’ (at [75]).


Nor did either of the other parties to the litigation suggest to Mr Bradley that he had lied. This resulted in a lack of procedural fairness, which placed the situation squarely in Browne v Dunn territory, a rule which also applies equally to judges (as pointed out by McColl JA at [6]).


The absence of a proper finding that Mr Bradley had lied left only one possible result: that the identity of the driver at fault simply could not be established…judgment reversed and entered against the Nominal Defendant instead!

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Filed under appeals, Civil, evidence, Insurance

‘Hot tubbing’ can be anything but ‘just, quick and cheap’


With its racy moniker and perceived potential to address the kinds of reservations McClellan CJ raised in Wood v R [2012] NSWCCA 21 (at around [465-470]), the arrival of the expert conclave procedure in this jurisdiction was received with considerable optimism.


In theory at least, by the expert having to face-off with their peers, professional pride will supress the willingness to express a one-eyed opinion tailored to the needs of one’s paymaster. Having the experts brought together before the trial to establish the major areas of difference also has the potential of saving valuable court time for debating areas of genuine controversy.


In my experience however, us lawyers find it hard to stay out of the process enough to let these advantages bring their ‘just, quick and cheap’ imperative to fruition.


The battle simply shifts to areas like how the experts are actually briefed (eg. agreeing upon the assumptions upon which the experts will base their opinion). In fact this is probably the first bit of advice I can give: beware of being railroaded into agreeing a set of assumptions which promotes the opponent’s case in favour of your own. These assumptions can become close to accepted fact in the case, even though we all know from Makita that the underlying facts upon which the opinion is based must each be proven.


Nevertheless, Heydon J’s ‘counsel of perfection’ as it is sometimes called, is not always so closely observed amid the cut and thrust of a trial. If we are not careful, assumed facts have the power to take on the status of established folklore.


In fact, in some cases agreed assumptions are simply not appropriate. For example, where there is an issue of causation of psychiatric injury. Perhaps more that any other discipline, psychiatry is an area about which minds will differ radically (no pun intended). Part of the reason for this is that a psychiatrist can place differing emphasis, or indeed little or none, on the many various background experiences that make up a plaintiff’s pre and post-accident life. Telling all experts within the conclave which facts they can take into account in rendering their opinion has obvious difficulties in this regard.


Another criticism and danger to be mindful of, is that expert conclaves promote a survival of the fittest environment among the experts themselves. The contest becomes one of who is quickest to the mark in finding the ‘alpha’ expert, whose credentials, personality or both will see the others bow to their will.


Then there’s the logistics of getting the experts together who, in my experience, seem notoriously difficult to coordinate.

Despite all the work of getting them together in one place to refine their various opinions into something vaguely collective, so many of the joint reports I have seen are nothing more than a cut and pasted collection of the relevant parts of each expert’s individual report.


For the conclave process to be ‘just’ practitioners need to exercise great vigilance, but to do so is rarely ‘quick and cheap’.


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Filed under Civil, evidence

The Rule In: Res Ipsa Loquitur

This is another addition to my ‘The Rule In’ list of standard legal maxims.


It is my experience that in negligence cases where there is no other obvious explanation for an accident other than the fault of the defendant, a plaintiff will allege res ipsa loquitur. It masquerades as the perfect case for a plaintiff. Properly applied however, it’s anything but a cinch.


A recent treatment of the applicable principles by McCallum J in Holberts Oyster Supplies P/L v Stephenson [2014] NSWSC 425 illustrates this point.


The first thing to know about res ipsa is that it is not a rule of law but rather a process of inferential reasoning to bring about factual conclusions. Therefore, whether or not it was engaged in correctly may not even be appealable, it being in all likelihood a question of fact. McCallum J raised this doubt at [19-20], but settled on it being a mixed question of fact and law, for which leave was required (and granted).


In Holberts, the plaintiff’s truck collided with a spare wheel that had broken free from where it was stored beneath a trailer towed by the defendant’s truck. At first instance, there being no other evidence upon which a finding of negligence against the defendant could be made, the plaintiff’s case relied heavily upon seeking to have the Magistrate draw an inference on the basis of res ipsa loquitur. The magistrate rejected this approach and the plaintiff appealed, alleging the Magistrate she had done so incorrectly.


MacCallum J reviewed the key authorities on the doctrine and at [12] refined the principles to the following three:


(a) the cause of the incident must be unexplained;

(b) the incident must be of such a kind that, in the common knowledge and experience of mankind, it does not ordinarily occur without negligence;

(c) the things that caused the incident must be in the exclusive control of the defendant.


By reference to more of the authorities her Honour also pointed out that satisfaction of the above test still doesn’t get the plaintiff home by say, creating a rebuttable presumption that the case is made out. At [15] her Honour says:


Ultimately, however, any inference to which the principle gives rise is but one factor to be taken into account along with the other evidence in the matter.


Returning to the facts of this case, on its face, reliance upon res ipsa loquitur might have seemed attractive. Why else other than the defendant’s failure to have it properly secured would the wheel have fallen free from the underside of the trailer?


But the trial judge disagreed. The causal component of the case was not so straightforward. That is, the plaintiff’s case failed at the second hurdle, it being decided that this was not such a simple matter, ie. not a matter that within common knowledge and within the experience of mankind, only explicable by negligence.


In fact the trial judge proffered a number of other alternatives: faulty ropes securing the wheel, its T-bar not being properly secured, a crack in the T-bar, something on the road that came into contact with the tyre rack causing friction or even a latent defect not discoverable on visual inspection (of which there was evidence two weeks prior to the accident).


In referring to this part of the magistrate’s judgment, her Honour MacCallum J found the trial judge had more than adequately applied the principles applicable to a res ipsa inference and so was confident to dismiss the appeal.


What at first seemed quite an attractive way home for the plaintiff in the end proved calamitous.

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Filed under Civil, evidence, The Rule In