District Court New South Wales Medium Neutral Citation: Westfield Shopping Centre Management Company Pty Ltd v Rock Build Developments Pty Ltd (No 2) [2013] NSWDC 306 Decision date: 18 October 2013 Before: Cogswell SC DCJ Decision: Evidence inadmissible. Catchwords: Evidence - admissibility - email to plaintiff - apology - discussion of relevant factors - not admissible. Legislation Cited: Civil Liability Act 2002 (NSW), s 68. Texts Cited: Dominic Villa, Annotated Civil Liability Act 2002 (NSW), (2nd ed 2013, Lawbook Co). Category: Procedural and other rulings Parties: Westfield Shopping Centre Management Company Pty Ltd (Applicant) Rock Build Developments Pty Ltd (Respondent to Application) Representation: Counsel: C J Peadon (Applicant) B Hull (Respondent to Application) File Number(s): DC 2013/00249768 Judgment 1Mr C J Peadon of counsel appears for the plaintiff in this application for summary judgment against the defendant. There is annexed to an affidavit, tendered by Mr Peadon, an email from the defendant to the plaintiff. Mr B Hull of counsel, who appears for the defendant, objects to that email being admitted into evidence. I have appended a copy of the email to this judgment. 2The basis of Mr Hull's objection is Part 10 of the Civil Liability Act 2002 (NSW). Mr Hull argues that the email is an apology and therefore in accordance with s 69 of that Act "not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter." 3Mr Peadon realistically acknowledges the force of Part 10 of the Civil Liability Act. He says that the contents of the email can be divided, or part of it severed. He acknowledges that part of the email obviously contains an apology, but part of it contains undertakings about future conduct. 4I should briefly say something about the context. The plaintiff is Westfield Shopping Centre Management Co Pty Ltd and the defendant is Rock Build Developments Pty Ltd. Westfield operates shopping malls and Rock Build was a contractor undertaking some work at one of the shopping centres. During the work something happened that caused water damage to the shopping centre. Westfield has sued Rock Build for damages and seeks summary judgment against Rock Build. The event causing the water damage happened on 31 August 2012. The email which Mr Hull objects to is dated 4 September 2012, a matter of days later. 5Mr Hull's point is that the whole email should be read as an apology and is therefore inadmissible. Mr Peadon's point is to acknowledge part of the email is an apology, but to isolate that part which he says is not an apology and which should be admitted in these interlocutory proceedings. 6The word "apology" is defined by s 68 of the Civil Liability Act to mean "an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter." 7An evident purpose of the provision is to render inadmissible any natural expressions of sympathy, regret or compassion made by one person to another without the contemplation of future litigation and the contemplation that what is said may be held against them. 8To my mind, two things are important in construing the definition. One is that, in my opinion, the closer to the event in question the assertions are made the more likely that they will be regarded as an apology. The second is that if litigation is not anticipated or has not commenced at that stage, then it would be more likely to be regarded as an apology. In this case, the apology was made within days, as I have already observed. 9The next question is whether Mr Peadon is right in wanting to sever part of the document which he says does not amount to an apology. The passage which Mr Peadon says should be severed is where the author said that the defendant has "learnt from these events, and we have already instituted procedures to prevent and minimise any further damage from such incidents." There is an argument that such a document might be severable. The argument is canvassed by Dominic Villa, Annotated Civil Liability Act 2002 (NSW), (2nd ed 2013, Lawbook Co). I do not express a concluded view about whether or not a passage can be severed from a document said to be an apology, but it does seem to me that if an apology is made fairly soon after an event - and I acknowledge that expression is vague - then a motive is likely to be the restoration of relations between the parties and possibly the avoidance of litigation. 10The fact that the parties may be corporate entities involved in a commercial arrangement, such as this case, is consistent with one of the parties still wanting to maintain relations, obviously in their commercial interests. It seems to me, though, that an apology should not be construed too narrowly. It might be seen as a natural part of an apology, especially one made by a layperson before litigation and soon after the event, that it would often include an indication that such an event would not happen again. It may even indicate the steps which would be undertaken so that the event would not recur. The person writing might think that a simple apology could be rather hollow without an indication of intended future conduct. 11The passage which Mr Peadon wants to sever as an undertaking about future conduct is just such an indication. That, to my mind, should be regarded as a natural part of an apology. 12In my opinion, the whole of the document - which is an email from the operations manager of the defendant to the plaintiff dated 4 September 2012 and which is annexure B to the affidavit of Rachele Godridge of 15 August 2013 - is an apology and is not admissible in these proceedings as evidence of the fault or liability of the defendant. APPENDIX From: Rockbuild [email address] Sent: Tuesday, 4 September 2012 9:59 AM To: Bob Battagello Cc: 'Raymond Azar' Subject: Sprinker Incidents - Unforseen Events Dear Bob, I understand that Rockbuild has, through our actions with the Sprinkler incidents inside Quicksilver caused some levels of disruption and damage to Westfield and to some tenants. Please note, this has never happened to us prior to this. We have been operating as Building contractors within Westfield Shopping centres for almost 20 years without incident. Now we have had 3 incidents in the space of 2 weeks within your centre, one of these creating a damage to your lifts and escalators. Please accept my SINCEREST apologies for these incidents both personally and on behalf of Rockbuild At this point I can only offer our COMPLETE cooperation in completing any restitution that may be required to complete any repairs and pay for any damages caused by Rockbuild or their staff. Please note that we have learnt from these events and we have already instituted procedures to prevent and minimise any further damage from such incidents. Going forward, 1. Rockbuild will insist (from their Sprinkler Contractors) that all pipes and sprinklers are capped and cut off above and away from the Working Platform area (ie: above or away from any working heights or distances) 2. All Rockbuild Demo Crews will carry the following to every site in case of ANY unforseen event.. · Enough Sandbags to divert any spills away from shops and Mall areas and into an Existing drainage location. · Flexible Plastic Water sausages (50 metres long - as used by Sprinkler contractors for draining systems) and Waterproof Tape. In case of incident to wrap around a pipe and divert the flow to a safe location, determined prior to any works starting. · A submersible Pump with long outlet pipe to divert and pump any water to a safe location (determined prior to works commencing) We will ALWAYS practice the utmost care in all works however if any Unforseen event occurs again we will always be prepared. Again please accept my sincerest Apologies . Kind Regards Jim Kapinvus Operations Manager (Major Projects) Rock Build Developments P/L ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2014