Brown v Holzberger & AAI Limited

This decision considers the application of the res gestae exception to the rule against hearsay to a comment made by the plaintiff shortly after a motor vehicle accident that had injured him. In determining whether such a statement was admissible in proceedings against the driver of the other vehicle, Justice McMeekin considered the possibility of concoction or distortion, and the natural tendency to justify one’s actions in the eyes of others. Finding that he could not exclude the risk of self-justification, his Honour refused to admit the statement.

McMeekin J

12 April 2017

This action arose following an accident in which the plaintiff sustained serious injuries, ultimately requiring a below knee amputation of his left leg, after his motorcycle collided with a motor vehicle driven by the first defendant. [1]. Both liability and quantum of damages were in issue.

One particular aspect of the matter is of interest, namely his Honour’s consideration of whether an out of court statement made by the plaintiff shortly after the collision ought to be admissible as coming within the res gestae exception. The plaintiff made a statement, to the effect that “I thought he’d stop”, as he lay on the road shortly after the accident. [46]. The defendant regarded it as a hearsay statement and objected to its admission on that basis. [45]. Relying upon Sydney Electricity v Giles (1993) 9 NSWCCR 700 and Ross v Hamilton [1997] QSC 170 the plaintiff, conversely, argued that it was part of the res gestae and ought be admitted.

His Honour determined that the statement was indeed inadmissible as it did not form part of the res gestae, and was irrelevant as it only went to the plaintiff’s state of mind. [47]–[48]. His Honour was generally satisfied the statement was sufficiently contemporaneous with the event. [53]. But, as he observed, the onus lies on the party seeking admission to show that the possibility of concoction or distortion can be disregarded: see Ratten v The Queen [1972] AC 378, 391 per Lord Wilberforce cited with approval in Pollitt v The Queen (1992) 174 CLR 558. As his Honour pertinently identified, there is a natural tendency, which people sometimes have to justify themselves in the eyes of others (see Eaton v Nominal Defendant [1995] QCA 435). In this case as there was no evidence that the plaintiff was not thinking clearly at the time he made the statement, and in view of the plaintiff’s traffic history, his Honour could not exclude the risk of self-justification. [56].

With those matters in mind his Honour was not minded to admit the statement.  His Honour was also fortified in this conclusion by the fact that in his view the statement did not lend much assistance to the plaintiff’s case. [58]. 

In addition to the above, the decision includes a useful albeit abridged discussion as to the correct interpretation of s 59 of the Civil Liability Act 2003. [130].

A De Jersey