HOFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 197

HOFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY AP and ROLFE AJA

17 August 1995, 21 August 1995

Evidence:

The driver of a motor vehicle involved in an accident held to be a person "interested" within the meaning of s14B(3) such that his statement should have been rejected: Costa v Cos a (1967) 87 WN 20; Walters v Government Insurance Office of New South Wales (1968) 88 WN 622; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398; Brown v Petranker (1991) 22 NSWLR 717; Tobias v Allen (No 2) [1957] VR 221; Accident Insurance Mutual Holdings Limited v McFadden (1993) 31 NSWLR 412.

New Trial:

Trial Judge had regard to material not in evidence: new trial required: Stead v State Government Insurance Commission (1986) 161 CLR 141 and G N Simmonds v MC Spooner (Court of Appeal 28 March 1995 - unreported) applied.

Words and Phrases:

A "person interested"

Gleeson CJ I have had the benefit of reading in draft form the judgment of Rolfe AJA. I am in agreement with that judgment, and would add only some brief observations upon the issue as to whether Mr Murphy was a person interested when he made the statement received in evidence under s14B of the Evidence Act.

Whatever may have been his precise state of knowledge as to the pending litigation, or the law concerning civil liability for motor accidents, Mr Murphy must have known that his statement was being taken in connection with, and for the purpose of the resolution of, an issue as to who was to blame for the accident.

The question whether Mr Murphy was at fault was one in which he was interested. He was clearly not impartial. The fact that he had no financial interest in the outcome of the pending legislation does not alter the case. When a question arises as to whether somebody is to blame for a motor accident, questions of possible civil or criminal liability are not the only matters that are capable of giving that person an interest in the manner in which the question is decided.