McGlashan v QBE Insurance Limited [2013] NSWSC 678

Supreme Court New South Wales

Medium Neutral Citation: McGlashan v QBE Insurance Limited [2013] NSWSC 678 Hearing dates: 27, 28, 29 May 2013 Decision date: 28 May 2013 Jurisdiction: Common Law Before: Campbell J Decision: Admit the statement of Mr. Fitzgerald, dated 4 December 2006, as exhibit 4 Catchwords: EVIDENCE - prior consistent statement - whether admissible under s108(3) Evidence Act 1995 (NSW) - whether it was suggested to the witness that his evidence had been 're-constructed' EVIDENCE - s135 Evidence Act - whether the probative value of the statement is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Barry McGlashan (plaintiff) QBE Insurance Limited (defendant) Representation: Counsel: Mr. M. Cranitch SC with Mr. R. Harrington (plaintiff) Mr. R.A. Cavanagh SC with Mr. N.E. Chen (defendant) Solicitors: File Number(s): 2009/297804

Judgment 1Mr. R.A Cavanagh SC, who appears with Mr. N.E Chen for the defendant, seeks to tender in re-examination of Mr Seth Fitzgerald a prior consistent statement of the witness under s 108(3) Evidence Act 1995 (NSW). Mr. M Cranitch SC, who appears with Mr R. Harrington for the plaintiff, has objected to the tender, and has argued that if I am against him on the admissibility of the statement it should be, nonetheless, excluded under s135 of the Act. 2In his evidence in chief, which is in the form of a statement which is exhibit 3, Mr Fitzgerald gave evidence of an admission he says the plaintiff made to him on the very day of the accident, that the accident happened in circumstances quite different from those relied upon to make good his case before me. Before me, the plaintiff says that the ladder he was descending blew over in a strong gust of wind as he sought to gain egress from the roof where he had just completed repairing a leak. The effect of the evidence of Mr Fitzgerald is that the ladder had blown down before the commencement of the plaintiff's descent and the plaintiff decided to make his own way down by jumping rather than calling out for, or in some other way seeking, assistance. The acceptance of the evidence may not necessarily be fatal to the plaintiff's case, but it would certainly make proof of negligence that much more difficult. Accordingly, one can readily appreciate the importance of the evidence of Mr. Fitzgerald to the defendant's case. 3During cross-examination of Mr Fitzgerald, Mr. Cranitch did not seek to suggest that Mr Fitzgerald was fabricating what I would call the contentious evidence. But it was put to him that due to the effluxion of time, he may well be mistaken about what was said, and he was cross-examined to suggest that his evidence in relation to the surrounding details was faulty - no doubt for the purpose of laying a foundation for a submission in due course that I should reject Mr Fitzgerald's evidence, not because he was lying to me but because, in all the circumstances, his evidence was simply too unreliable and improbable to be accepted. 4The plaintiff's submission, which I have outlined above, in my view is to the effect that the evidence of the witness is a reconstruction within the meaning of s108, and therefore the condition for the application of the s108(3) exception to the credibility rule has been established. 5Turning to the question of s135, Mr. Cranitch has pointed out that the statement tendered before me is longer than the evidential statement and contains evidence of other matters. He has said he would not wish to have me exclude only those additional parts of the statement because, as often happens, there are things in it which may assist the plaintiff's case. As I understand the submission, with great respect, it is all or nothing. Either I reject the whole of the statement as being unfairly prejudicial to the plaintiff or I do not. It seems to me that the probative value of the earlier statement, admitted for the purpose contemplated by s108, is not outweighed by the danger that it might be unfairly prejudicial to the plaintiff. 6Mr. Cavanagh has pointed out that in a civil case there is no rule that the defendant, or any other party for that matter, is obliged to voluntarily disclose all material which might be relevant to the evidence a witness is going to give, or the reliability of that evidence. Moreover, Mr. Cavanagh has submitted that the document being tendered was produced under subpoena by a third party to these proceedings, and access to that document has been equally available to both parties for some time. I do not understand Mr. Cranitch to join issue with that statement, and accordingly I accept, without more, what senior counsel has told me from the bar table. 7That is not the end of the matter, of course. What happens in court is just the tip of the iceberg, and careful counsel, like Mr. Cranitch and Mr. Cavanagh, prepare their path carefully in chambers before coming to court. And if counsel is caught a little by surprise in relation to a course followed by the opponent, prejudice can yet follow because one's plans may be undermined. It seems to me, true as that is, it really amounts to no more than the fortunes of war, and anyone who is experienced in litigation would appreciate that trials involve a dynamic and changing process. 8I am not satisfied that the admission of the statement, although it may be prejudicial in the sense discussed by Mr. Cranitch in his submissions, is unfairly so. I do not propose to exclude it. 9However I consider, having regard to the element of being caught by surprise on the plaintiff's side of the record, and I am not suggesting that there was improper surprise sprung on the defendant's side of the record, as Mr Fitzgerald is still here, and given that the tendered statement deals with other matters, it is an appropriate exercise of my discretion, to alleviate whatever unfair prejudice in the forensic sense that the plaintiff might suffer by the admission of the statement, to allow Mr. Cranitch a further opportunity to cross-examine the witness on the basis of the statement. 10For those reasons, I admit the statement of Mr. Fitzgerald, dated 4 December 2006, as exhibit 4