Abstract

Appeal on Finding of Fact

Evidence - Admissibility of Insured's Statement

Evidence - Finding on Demeanour

Expert Evidence

Evidence- Admission

Evidence - Claimant's Failure to Call Insured

 

Article

Appeal on Findings of Fact

 

 An appeal by way of rehearing must be a real review of the evidence and of the trial judge’s reasons to determine whether the judge erred in fact or law, and in doing so the court must weigh conflicting evidence and draw its own inferences and conclusions, bearing in mind that it has neither seen nor heard the witnesses. If it concludes that the judge erred in fact, it is required to make its own findings of fact and to formulate its own reasoning on them. But it should not interfere with such findings unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony or they are glaringly improbable or contrary to compelling inferences: Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, which explains the limitations of appellate courts and also the limitations on the weight to be given to expressions by trial judges about witness credibility upon the basis of appearances: Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104.

 

Admissibility of Insured’s Statement

Although any judgment for a claimant may be given against the defendant’s insurer, the insured is a necessary defendant against whom a right to damages has to be proved: De Innocentis v Brisbane City Council [2000] 2 Qd R 349. Evidence  of a statement of the insured is admissible in the claimant’s case as a statement against his interest. A self-serving statement of a party is usually inadmissible as evidence of its truth owing to the fear of fabrication of the statement. Conversely, admissions are received as evidence against the party making them upon the basis that something which was said by a party against his own interest is likely to be reliable. But ex hypothesi, this does not apply if the statement is not against his interest if its content is neutral: Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104. Interest might also be relevant if the insured’s admission is meant to assist a wrongful claim against him. The reliability of a party’s admission comes from the party’s realisation that what he is representing to be the fact is adverse to his interest. There is a presumption that noone would declare any thing against himself, unless it were true; but that every man, if he was in a difficulty, or in the view to any difficulty, would make declarations for himself: ]he presumption ... is, that no man would declare any thing against himself, unless it were true; but that every man, if he was in a difficulty, or in the view to any difficulty, would make declarations for himself: Constantinou v The Queen [2015] VSCA 177 at [190].

Failure by Claimant to Call Insured as Witness

In respect of the Jones v Dunke (1959) 101 CLR 298 inference that the evidence  of a witness not called by a party would not have assisted that party, it may be a reasonable explanation that the insurer party has reasonable grounds to believe that the witness had given an untruthful account to its investigator. The insurer may have been entitled to cross-examine the witness: Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104.

Expert Evidence

Expert evidence may be merely a statement of logic and lack any character or quality of expertise: WFI Insurance Ltd -v- Manitowoq Platinum Pty Ltd [2018] WASCA 89.

Evidence - Admission

Ordinarily, an admission made informally is evidence of the fact, but is not conclusive: Foster v QBE European Underwriting Services (Australia) Pty Limited as managing agent for Lloyd's Syndicate 386 [2018] NSWSC 440.

Finding Depending on Demeanour of Witness

There must be great care in making demeanour findings concerning a witness is from a cultural and ethnic background different from that with which the judge is familiar, partiicularly if the evidence is giventhrough an interpreter. Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; Ren v Jiang [2014] NSWCA 1: Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104.