GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ALAN JAMISON [1989] NSWCA 85

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ALAN JAMISON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA 26 June 1989

[1989] NSWCA 85

Samuels JA This is an application by the Government Insurance Office of New South Wales, the defendant under s14 of the recent amendments to the Motor Vehicles Third Party Insurance Act, following a trial before Wood J in which the opponent to the motion, the plaintiff at the trial, obtained judgment in the sum of $284,100.

The opponent made two claims in effect, that is to say sought to recover damages in respect of two accidents. In each of them he was, as he asserted at the time, a pillion passenger on a motor cycle ridden by a lady called Elena Garcia, who was at the time the opponent's girlfriend. The negligence alleged in respect of the first accident was Miss Garcia's loss of control of the motor cycle. In the second it was either her negligent riding or the negligence of a motor vehicle or a combination of both. In the event the opponent recovered in respect of both accidents, for the negligence of Miss Garcia in the first case and of the driver of the motor vehicle in the second. Miss Garcia was not called as a witness.

There were proceedings before the trial before Carruthers J in which a number of matters were agitated, including the conduct of the opponents attorney in interviewing Miss Garcia and, I was told, in taking a statement from her. The claimant sought various orders restraining the evidentiary use which the opponent and his advisers might make of Miss Garcia and anything she had said to the opponent's attorney.

The question then arose in the trial as to which side ought to have been expected to call Miss Garcia so that a direction might be obtained according to what is called the rule in Jones v Dunkel. The learned judge decided that, because it was the effect of s14 to establish the Government Insurance Office as a party in every respect Miss Garcia was not a "secondary party" but was merely a non-party witness. He ultimately came to the conclusion that the rule in Jones v Dunkel required an inference to be drawn against the Government Insurance Office.