Category Archives: Civil

May 9, 2014 · 12:31 am

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 McCallum 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.

Evidence by Phone and AVL: talk to the interests of justice

There is an increasing trend towards witnesses giving their evidence by phone or audio-visual link these days.

McCallum J’s recent Supreme Court decision of Tan v Silverdale Sand and Soil Pty Ltd [2014] NSWSC 391 reviews the relevant legislation and provides a useful guide to the kinds of factors that will be taken into account by the decision-maker in such applications.

Tan was an appeal on a question of law as of right under s39 of the Local Court Act (NSW) 2007. It was a simple property damage claim arising out of an accident between a truck and a sedan. One of the principal grounds of appeal was that the magistrate erred by giving a direction that an eyewitness to the accident be permitted to give his evidence by phone.

At first instance the parties drew the magistrate’s attention to UCPR 31.3, a regulation which is pretty bare on detail, simply providing a court with the discretion to order that evidence may be received by phone, AVL or otherwise.

However, the magistrate was not taken to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998, which deals with the question more expansively. There are 2 salient aspects.

Firstly, under ss5B(2)(c) a court cannot make an order if it is satisfied that the direction would be unfair to ‘the party’. McCallum J took the view that contrary to what Austin J said in ASIC v Rich, ‘the party’ refers to the applicant party (ie. the party calling the witness). On the face of the section this would seem correct. However it is somewhat counter-intuitive because it raises the obvious question as to why a party would make the application in the first place if it could cause unfairness to them.

Secondly, ss5B(3) says that a court must not make the direction unless it is in the interests of the administration of justice to do so. As such, perhaps the easier way of dealing with the ambiguity in ss(2)(c) is simply to roll any questions of fairness affecting all parties, into the ‘interests of justice’ question under ss(3). Her Honour did in fact acknowledge this degree of overlap at [33].

On the general fairness issue, the appellant plaintiff argued at first instance that he would be prejudiced by the court not having had the opportunity to observe the demeanour of the witness and not being able to show the witness photos of the accident scene in cross-examination.

McCallum J placed these arguments alongside the fact that this was the third time the parties had assembled for the hearing and that the defendant’s lawyers had only become aware a few days prior that the witness could not be in court.

A medical certificate was also produced at the first instance hearing, which appeared to assist the defendant. I’ll take this opportunity to point out the obvious – medical certificates should always set out precisely what it is that prevents a person from coming to court. Otherwise, a court is entitled to reject them.

In the wash up, her Honour found that whilst not having explicitly considered section 5B, the magistrate did still turn his mind to the right kinds of questions to enable him to adequately consider whether having the evidence given by phone was in the interests of the administration of justice. And she agreed with the magistrate’s tacit consideration that in the overall circumstances, it was.

In so finding, her Honour also made mention of the fact that allowing the witness to give evidence by phone facilitated “just, quick and cheap resolution” of the case (s56 of the Civil Procedure Act).

A final matter to keep in mind if you are in the Local Court, is that Civil Practice Note 1 at para. 18.1 requires a party to seek a direction that a witness be permitted to give their evidence by phone or AVL at the time the case is listed for hearing. Her Honour said that whilst this is an important procedural requirement, the defendant’s failure to comply with it should not have been fatal, given that “absolute insistence upon literal compliance with it will not always serve the interests of the administration of justice” (at [38]). Once again, we are left with questions over the force and effect of Local Court practice notes…an argument for another day!

PS– a bit of shameless self-promotion…the next instalment of the NSWLR’s will include my first reported decision (as junior), Miles v Motor Accident Authority of NSW [2013] NSWSC 927. Fortunately, it was also a win.

Appeals from the Local Court: when does a feeling of not getting a “fair go” become appealable?

One hundred thousand dollars is a lot of money for most people. With its jurisdictional limit now sitting at this height, the Local Court of NSW provides an important means of civil redress in this state.

Yet magistrates preside in an environment of increasingly busy courts whilst still having to meet a demanding standard of flexibility. They decide an accused’s liberty one day and then have to wrestle with the subtleties of a tricky little commercial matter the next. It is no easy task.

Putting natural inclinations to one side, perhaps this is why on some occasions, an unsuccessful party might feel as though the Court’s justice has been meted out in rather a rough and ready fashion. However, this is not always tantamount to error.

Below is a framework for assessing whether there are prospects that justify taking this next step; instead of just sucking up the loss and getting on with life.

They got the law wrong

This is the most basic of them all. If the magistrate has clearly misdirected themselves as to the correct legal principle/s you’re in good shape. Though you will need to demonstrate how this has affected the result.

Inadequacy of reasons

This is one that comes up a lot particularly when a magistrate has made their mind up but doesn’t feel inclined to consider and then say how they really got there. This is not an uncommon way for any of us to think and behave in everyday life and of course magistrates are no exception. Sometimes we just prefer the steak instead of the fish.

The guiding principle is that justice must not only be done but also be seen to be done. Reasons are the central means by which this end is achieved. It also enables the losing party to understand why they were unsuccessful and whether they have any grounds for an appeal. As the NSW Court of Appeal pointed out in Wiki v Atlantis Relocations (2004) 60 NSWLR 127 at 135-136:

It is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party.

One of the most succinct encapsulations of how the duty to give reasons operates in practice was given by Meagher JA in Beale v Government Insurance office of NSW (1997) 48 NSWLR 430 at 443 (and not surprisingly reads somewhat like a student manual on how to answer questions in a law exam). His Honour said a decision-maker should:

1. Refer to relevant evidence, but there is no need to refer to it in detail;

2. Set out any material findings of fact and any conclusions or ultimate findings of fact reached; and

3. Provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.

Failure to take into account a material consideration

This normally arises where there is some test or set of elements to the cause of action one or a number of which the Magistrate has, on the face of the record (ie. the judgment), simply failed to factor into their reasoning process.

Unreasonableness

When the failure to account for a relevant matter becomes more a question of degree than failure to deal with it altogether, the focus turns more towards a question of reasonableness.

But it has to be something important enough to have had an effect on the result. The significance of the matter will therefore determine whether such a failure is truly an error (see Mason J’s well-known judgment in Minister v Peko-Wallsend (1986-87) 162 CLR 24 at 32). As Mason J said in Peko (at 41):

…in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no importance. The preferred ground on which this is done, however, is…that the decision is “manifestly unreasonable”.

This position was further developed in the recent High Court case of Minister for Immigration and Citizenship v Li [2013] HCA 18 where Hayne, Kiefel and Bell JJ described unreasonableness in terms of a decision lacking “an evident and intelligible justification”, ie. illogical.

Denial of Procedural Fairness

At its heart, a denial of procedural fairness involves some inability on the part of the aggrieved party (not self-inflicted) to put an essential part of one’s case before the magistrate and have it determined.

A common means by which this seems to take place in the Local Court is when the magistrate, perhaps in striving to deliver what they perceive to be the “right” result, goes outside the pleaded case.

It has been said on a number of occasions that the Local Court is not a ‘court of strict pleading’, but what does this really mean? What happens if a party runs and argues its case more loosely and then the court, sufficiently persuaded, follows that party so that eventually the case is decided in a manner which is somewhat different to how things look on the pleadings.

If you are on the wrong side of this situation, the first port of call is to see how your legal representative reacted to it at first instance.

Did they raise an objection (eg. relevance) to questions directed to the elements of the case not pleaded during cross-examination or when the evidence in chief was being led?

How was it dealt with in submissions (ie. was a submission made that this was not pleaded so the court should not decide the case on that basis)?

And thirdly, was the argument that the other party raised in submissions (but did not plead) met with as good an argument as could possibly be mustered under the circumstances? Otherwise, there is a risk that by not meeting the argument the party is taken to have acquiesced to it being ruled upon and potentially deciding the case.

For an HCA discussion of these matters see Dare v Pulham (1982) 148 CLR 658.

Beware of appealing factual findings

It is trite to say that in most instances findings of fact are not appealable. However, beware of a situation in which the appeal ground has as one of its foundations a challenge to the magistrate’s factual findings. Unfortunately, a party is normally stuck with those, however perverse they might seem. This is unless of course it forms part of that rather protean concept of a “mixed question of fact and law”, in which case it may be appealable with leave.

This is the moment at which you might consider giving me a call.

Category Archives: Civil

The Rule In: Res Ipsa Loquitur

Evidence by Phone and AVL: talk to the interests of justice

Appeals from the Local Court: when does a feeling of not getting a “fair go” become appealable?

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