HULA v BURGESS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, COLE JJA and ABADEE AJA 19 September 1996 [1996] NSWCA 259 Motor Accidents Act s45 — Whether letter constituted admission of liability purposes of s45 Priestley JA I will ask Abadee AJA to give his opinion first. Abadee AJA The proceedings the subject of this appeal were heard by Downs DCJ on 20 and 21 September 1995 and decided on 22 September 1995. The appellant claimed damages for personal injuries sustained in a motor vehicle accident on 6 February 1993. By her statement of claim issued in January 1994, she claimed that the accident occurred on the date already mentioned whilst she was travelling in South Dowling Street, Surry Hills. Notice of grounds of defence were filed of the respondent in April 1994. The defence was filed, or appears to have been filed, by the solicitors for the respondent and on behalf of its third party insurer and it contained the usual denials, including that of negligence. There was also pleaded contributory negligence on the part of the appellant. Proved in the plaintiff's case was a letter of 26 May 1993. It appears that in that letter the respondent's third party insurer had advised the appellant's solicitors in the following terms: "We advise that for the purposes of the Motor Accidents Act 1988 (as amended). We admit that our Insured is 50 per cent liable for causing the abovementioned accident, partial admission being cause of your client's contributory negligence. This admission is purely for the purposes of the Motor Accidents Act and does not in any way constitute an admission of liability for matters which may not be the subject of a claim under the Act, nor does it constitute any admission by the owner or driver of the abovementioned vehicle." This letter appears to have been written by the respondent's insurer pursuant to the provisions of s45 of the Motor Accidents Act 1988. Curiously enough, it was the subject of a notation "without prejudice". That is an oddity in respect of a letter sent, one might have thought, pursuant to the provisions of s45 of the Act. Next, the suggested admission in paragraph one of that letter appears to be somewhat inconsistent with the concluding parts of the second paragraph of the letter and a question does arise as to whether in the event, it might be considered whether the letter of 26 May 1993 constitutes an admission, within the meaning of s45 of the Act. It is also appropriate to observe that no letter was written in response to the letter of 26 May 1993 suggesting that there was an internal conflict in the letter or, alternatively, that the letter ought not to have been marked "without prejudice". I will say a few more words about the matter in due course. On 29 August 1994 the solicitors for the respondent named also wrote to the appellant's solicitors. By that letter of 29 August 1994 the respondent's solicitors advised the appellant's solicitors that instructions had been received to withdraw 2 UNREPORTED JUDGMENTS the admission of liability made on 26 May 1993 prior to the filing of the notice of grounds of defence. The letter also confirmed that the respondent would rely on the notice of grounds of defence filed on 21 April 1994. No reply was filed in the proceedings raising any question that the respondent was, for example, estopped from disputing the matter of liability by reason of the respondent's insurer's letter of 26 May 1993. Nor at the trial was any application made to strike out the paragraphs of the respondent's defence as allegedly being inconsistent with the first paragraph of its insurer's letter of 26 May 1993. It is also appropriate to add that no application was made on an interlocutory basis prior to the trial to strike out the paragraphs of the grounds of defence inconsistent with the first paragraph of the letter of 26 May 1993. The matter came on for hearing before the trial judge. The appellant's case was opened and explained to his Honour. During the course of the opening, the letter of 26 May 1993 was tendered without objection and admitted into evidence in the appellant's case. Indeed, during the course of the opening, the appellant's counsel drew his Honour's attention to a decision of Nash DCJ in the case of Leaf v Boral Transport Ltd (1993) 35 NSWLR 592. That decision was mentioned early in the proceedings to the trial judge in support of the argument, that the respondent ought not be permitted to adopt a position inconsistent with that letter from his insurer of 26 May 1993 and that the admission in that letter should in effect have stood. The respondent's counsel after this debate took place then stated to his Honour that negligence was a live issue. In his reasons for judgment, his Honour held that despite the third party insurer's letter of 26 May 1993, the respondent in the proceedings was entitled to deny negligence. This finding has been challenged on the appeal and I will return to it in due course. As regards the case on liability and on the merits revealed by the evidence, his Honour considered the respective cases advanced for the parties observing that each counsel had submitted that the collision involving the appellant was wholly the fault of the other party. Both the appellant and the respondent gave evidence before his Honour. Indeed, they were essentially the witnesses on liability. The evidence revealed and his Honour indicated in his reasons for judgment that following the accident each driver had got out of his respective vehicle, took each other's particulars and that the appellant had left the scene. It appears that the police were not called to the scene of the accident. His Honour also observed that the appellant was not insured for property damage but that the respondent was. His Honour also went on to say that so far as he was aware each driver was alone and any person that might have witnessed the collision was not a witness who was known to either party. The plaintiff gave evidence that at about 11pm on 6 February 1993 he was driving his motor vehicle along South Dowling Street, Surry Hills, towards the city and was in the first line of traffic when he was stopped at the intersection of Flinders Street, which was controlled by traffic lights. It had been raining and the roadway was wet. After crossing Flinders Street, South Dowling Street narrowed to two lines on each side of the unbroken centre line. The plaintiff observed vehicles parked on the left and observed a vehicle ahead of him double parked. He reduced his speed to 25 or 30 kilometres per hour. His Honour said that "as it transpired the vehicle that he saw double-parked was the defendant's vehicle". His Honour proceeded to summarise the evidence given by the plaintiff, which was to the effect that the defendant's vehicle, which was double-parked, URJ HULA v BURGESS (Abadee AJA) 3 commenced to reverse park, and that the near front side of his vehicle collided with the offside front of the defendant's vehicle. At the time of collision he said that he had his right foot pressing hard on the foot brake. The defendant's version was also summarised by his Honour at Appeal Book 129, and it was to the following effect: "The defendant said he turned left into South Dowling Street from Flinders Street and stopped adjacent to a parked car, approximately 60 metres from Flinders Street, with the intention of reverse parking into a vacant spot behind the parked car. He looked in his inside rear vision mirror and saw that there was not any traffic approaching between him and the lights at Flinders Street and so he put on his left trafficator. He looked over his left shoulder and began to reverse park. At this stage he said there was insufficient room for a vehicle to pass him. He stopped, looked to his right, and saw the plaintiff's vehicle stopped approximately five metres behind him with a stream of traffic behind him. He resumed his reversing and then the near side front of the plaintiffs vehicle collided with the front offside of his vehicle. He said in cross-examination that he resumed his reverse parking because he was blocking traffic and had to complete his parking manoeuvre so as not to delay traffic any longer." His Honour therefore, had to consider the matter very much against the background of two conflicting versions given by two witnesses or parties who had appeared before him. His Honour made some important findings in relation to the matter. He said that the plaintiff's view of where he was going was not obstructed, that he had admitted that he had seen the defendant's vehicle double-parked, yet he did not stop in the circumstances. His Honour also found that the plaintiff did not offer any explanation as to why he did not realise that the defendant was intending to reverse park. A further finding was made that there was nothing to stop him seeing the vacant space, and there was nothing to stop him seeing the defendant's near side traffic indicator and his reversing light which, on the evidence, was probably working. In deciding the case his Honour was entitled to have regard to the way the issues had been formulated by the parties. It is interesting to observe as I have indicated his Honour's statement that each counsel had submitted that the collision was wholly the fault of the other party. His Honour then proceeded to consider the rival contentions advanced in support of the issue that had been so formulated. His Honour stated that if he accepted the plaintiff's version of events it meant that the plaintiff just drove into the defendant's vehicle whilst it was reversing. Mr Lidden, on behalf of the appellant, has submitted that such was an erroneous description of the way the appellant had advanced the case at the trial. His Honour then also proceeded to say that if he accepted the defendant's version then the defendant was doing something he was entitled to do in the circumstances, and that on the evidence he did it in a safe manner. Although the appellant complains that his Honour incorrectly summarised the case I do not consider that there is substance in such complaint or that the brief summary of the case so advanced suggests error. So much in my view is made clear by his Honour's findings, which appear at Appeal Book 132 where his Honour concluded that looking at the whole of the evidence it seemed to him that what probably occurred was that the defendant was reverse parking, as he was entitled to do. This manoeuvre had blocked traffic. The plaintiff had stopped and become impatient, miscalculating the gap, and so collided with the defendant in 4 UNREPORTED JUDGMENTS what must have been a rather minor impact, because both vehicles were driven away. In the circumstances so stated his Honour concluded that he was not satisfied that the defendant failed to exercise reasonable care. Indeed, he concluded that the plaintiff was the sole cause of the accident. Such finding seemed to be consistent with his Honour's earlier statement which reflected the positions of both parties, namely, that the collision was wholly the fault of one party or the other. In reaching the conclusion that he did, it seems to me that his Honour also had regard to the version given by the appellant/plaintiff in evidence, as well as the version that was given in fact by the respondent. Clearly his Honour accepted the respondent's version, and such acceptance was based upon, amongst other things, both seeing and hearing the respondent give his evidence. Indeed his Honour described the respondent as being a university student at the time, who impressed him as being an intelligent young man who was able to give a detailed version of what had occurred. It was that version that was accepted. His Honour, in arriving at the decision that he did, also had regard to his assessment of the reliability of the plaintiff, although it has been submitted by Mr Lidden, on behalf of the appellant, that his Honour made a number of errors in relation to assessing the reliability or credibility of the appellant. I am not satisfied that such claim has been made good. It is true that some of the matters that have been pointed out by Mr Lidden in his submission, touching upon the question of perhaps reliability, have a questionable foundation for them. Nevertheless it seems to me, when one looks at the reasons given by the trial judge, one has to also give weight to his Honour's assessment of the reliability of the appellant based upon seeing him and hearing him in the witness box. The finding by his Honour that the appellant did not appear to be as reliable as the respondent seems to me to be one in fact based upon at least his assessment of the appellant as a witness. It seems to me that to the extent that the respondent's version has been accepted, by reference to the impression made by the trial judge in the witness box, and to the extent that it is suggested that the appellant's reliability is brought into question again by reason of his demeanour in the witness box, that the appellant is faced with the difficulties of the type considered by the High Court in Devries & Anor v The Australian National Railways Commission (1992-1993) 177 CLR 472 at 477. Next, Mr Lidden submitted that his Honour's recounting of the appellant's case advanced at the trial was in error. It seems to me that the submission by Mr Lidden is faced with the problem, not only in terms of the matters to which I have made reference, but also in the fact that when one has regard to that submission, it is arguable, that it is somewhat inconsistent with the photographs tendered at the trial by the plaintiff in the case. Even assuming that the photographs can be reconciled with the appellant's claim, it still does seem to me that it is difficult to see how the appellant did not see the respondent's car reversing and getting into the position as shown in the photographs. However, I need say no more about these matters. It appears to me that the findings made by the trial judge, in part by reference to his evaluation of the demeanour of the respondent and appellant in the witness box, is an approach that really cannot be overturned despite the earnest submissions advanced on behalf of the appellant by Mr Lidden. I see no error in the findings of fact made by his Honour. They were, in my view, findings open to him on the evidence and also by reference to the evaluation of the credibility of the parties before him. URJ HULA v BURGESS (Priestley AP) 5 I now turn to the final submission that was advanced on behalf of the appellant, a submission by reference to the letter of 26 May of 1993 which, as I have already indicated, was a letter, the subject of withdrawal, if I may use that expression, by the respondent's solicitors in 1994 after the grounds of defence had been filed. Mr Lidden has submitted that the trial judge erred in deciding that the admission of liability contained in the letter of 26 May 1993 did not bind the respondent. There has been a most interesting discussion and debate before us in relation to the effect of that letter and its contents. It appears that in relation to that letter the trial judge concluded that the letter of 26 May, particularly, because of its concluding paragraph, did not preclude the respondent from being entitled to deny any negligence. It is not necessary, in the instant case, to deal with the number of authorities that we have been taken to touching upon the construction of s45 of the Motor Accidents Act and touching upon the question as to whether or not an unqualified admission under s45, does or does not constitute a binding admission upon an insurer by virtue of the provisions of the Motor Accidents Act and, further, or alternatively, constitute binding admissions upon an owner or driver. As indicated by me we were taken to a number of cases dealing with whether admissions of liability under s45 can or cannot be withdrawn, and whether or not, in some circumstances, it might be said that an admission of a particular type in a letter, written by an insurer pursuant to s45, may or may not give rise to an estoppel. All of these are interesting questions which, in my view, can be left to another day for decision. His Honour said that in relation to the letter, because of the concluding qualification, the admission did not constitute an admission by the owner or driver of the vehicle and that the defendant was entitled to deny negligence or was not precluded by the letter from doing so. His Honour also proceeded to find as a fact, and this is a finding not challenged in the appeal, that it was not suggested that the appellant had suffered any prejudice as a result of the insurer's admission. As I have already indicated it was common ground that there was no application either to strike out, nor alternatively was there any reply filed incorporating an estoppel and purporting to be based upon the letter of 26 May 1993. There are interesting questions still outstanding as to the proper construction of s45 of the Act. However, I do not believe that this is a case where further time should be spent in relation to the proper construction of s45, as I am of the view that the conclusion reached by the trial judge in relation to the letter of 26 May, was in fact a correct one. My view is that on its proper construction the letter of 26 May 1993 really did not, because of the qualifications introduced therein, constitute an admission within the meaning of s45 of the Act. For this limited additional reason it seems to me that the ground of appeal relating to the effect of the letter has not been made good. I would propose, for all these reasons, that the appeal be dismissed with costs. Priestley AP I agree with Abadee AJA, that the main factual findings made by the trial judge were open to him, for the reasons he gave, and justified his dismissal of the case. Counsel for the appellant pointed to a number of matters stated by the trial judge in the course of his reasons, which may not have been accurate, and in one or two instances which were characterised by counsel as wrong, with some 6 UNREPORTED JUDGMENTS justification. However, these matters were not of such importance to the main fact finding of his Honour which, as I have said, was justified by the reasons he gave for it, to warrant this court interfering with his factual conclusions based upon his own observation of witnesses. T also agree with what Abadee AJA has said concerning the attempt to breathe more life into the letter of half-baked admission which the insurer sent at one stage to the plaintiffs solicitors. That letter indicated some confusion, on the part of the writer, at least in the expression of whatever it was the writer was trying to communicate, and could not be treated, in my opinion, as the kind of admission of liability that would be necessary for the argument of appellant's council in this case to succeed. I agree that the appeal should be dismissed with costs. Cole JA I agree with the orders proposed by Abadee AJA and the reasons given, therefore I would also join in the remarks made by the presiding judge. Priestley AP The court is not inclined to make any other than the ordinary order for costs. The appeal is dismissed with costs.