Field v Commissioner for Railways (NSW)

(1957) 99 CLR 285
BC5700900
(1957) 32 ALJR 110
[1958] ALR (CN) 1055
(1957) 52 QJP 94

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(Judgment by: McTiernan J)

Field
v Commissioner for Railways (NSW)

Court:

Judges: Dixon CJ, Webb, Kitto and Taylor JJ

McTiernan J

Hearing date: 15, 18 and 19 November 1957
Judgment date: 19 December 1957

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Judgment by:
McTiernan J

The first question is whether the statement which according to the evidence of Dr Teece the plaintiff made as to how the accident happened was admissible in evidence. The doctor's evidence was that the statement was made at his medical examination of the plaintiff on 17 November 1953. The statement was highly prejudicial to the plaintiff and it is clear that if it was wrongly admitted into evidence there should be a new trial of the action. It is argued for the plaintiff that he submitted to the medical examination as a step in the negotiations which the parties entered into, on the initiative of the defendant, for the settlement of the action and that consequently the privilege of a "without prejudice" communication was applicable to the statement. On the other hand, it is argued for the defendant that the statement was not made expressly without prejudice and the privilege does not apply because the medical examination was made not only for the purpose of the negotiations but also to enable the doctor to ascertain the nature and extent of the plaintiff's injuries and give evidence of the facts which he found upon the examination, if the negotiations failed. Having read and considered the correspondence between the parties in which the real purpose of the medical examination is to be found, I have come to the conclusion that the medical examination was induced by the representations of the defendant's solicitor that the defendant desired to avoid this litigation and to settle the action by a compromise. I am also of the opinion that the statement of the plaintiff, if made, was relevant to and connected with the medical examination, and accordingly has the privilege of an admission made during negotiations entered upon with a view to the compromise of an action. It was not made expressly without prejudice, but admissions during such negotiations must be taken to be made upon the tacit understanding that they are not to be used if the negotiations break down. That principle is well established by the decisions which were cited by Mr Miller during the argument.

The action was one of negligence. The plaintiff alleged that he sustained serious injuries when he was alighting from a train at Daroobalgie station on 4 January 1953 and he claimed damages for the injuries and the pecuniary losses resulting from them. After the declaration in the action was served, the plaintiff's solicitors received a letter dated 8 October 1953 from the defendant's solicitor with reference to the action. The letter was marked "without prejudice". There was in the letter an introductory negation of liability on the part of the defendant coupled with an assertion that the plaintiff's own negligence caused the injuries. But it would appear that the defendant was not certain of his ground of defence. The letter in the plainest terms said that in order to avoid litigation the defendant was prepared to enter into negotiations for the settlement of the action "on a compromise basis". The letter went into details of what the defendant desired the plaintiff to do in order to advance the settlement of the action.

First, the defendant desired to know whether the plaintiff would submit himself to a medical examination by a specialist appointed by the defendant's Department, and the defendant promised to defray the travelling expenses incurred by the plaintiff in order to undergo the examination. Secondly, the letter inquired for figures and estimates of the plaintiff's pecuniary losses. It went as far as to ask for a list of expenses incurred by the plaintiff since the declaration was filed. Furthermore, there was in the letter a request for a statement "as to the lowest amount" which the plaintiff would accept "in full settlement". The letter also promised promptitude in considering the matter and claimed the indulgence of the plaintiff's solicitors in respect of the entry of a plea pending the outcome of the negotiations.

The letter which the plaintiff's solicitors wrote in reply showed the readiness of the plaintiff to enter into the negotiations for a settlement which the defendant had set on foot. It informed the defendant's solicitor that the plaintiff would submit to the proposed medical examination. The letter proposed some modification of the arrangement desired by the defendant about the time for filing pleas, in order that the hearing of the action would not be delayed too long, if the negotiations failed. The next letter from the defendant's solicitors expressed appreciation of the attitude of the plaintiff's solicitors on the extension of time for pleading. The letter said this: "The offer in my letter to you of the 8th instant to negotiate for settlement on a compromise basis was made with the express intention not only of avoiding the incurring of legal costs herein but also of disposing of the matter on an amicable basis. It is presumed therefore that as the defendant is filing a plea denying liability herein forthwith, you are agreeable, pending the outcome of the forthcoming medical examination to the defendant filing an amended plea if necessary . . . and that you are agreeable that brief will not be delivered to counsel pending the outcome of negotiations . . . " . A week later the defendant's solicitor wrote another letter to the plaintiff's solicitors stating that an appointment had been made for the plaintiff to be examined by Dr Teece on 17 November 1953. The letter gave details of the travelling arrangements which the defendant had made for the plaintiff. The plaintiff's solicitors acknowledged the receipt of that letter. They suggested that the time for filing the pleas should be limited to twenty-one days from the medical examination and that after that time they would file a replication and set down the action for trial.

It is clear that the fixing of these times for the completion of the pleadings in the action did not mean that the negotiations had terminated. The object of the plaintiff's solicitors was clearly to avoid any more delay than was necessary in getting the action tried if the negotiations did break down. They added this: "Pending the outcome of settlement negotiations we certainly will not incur any more expense than is reasonably necessary . . . brief on hearing will not be delivered . . . until the question of settlement has been fully explored". The letter contained the information which the defendant's solicitor requested by his letter of 8th October about the plaintiff's pecuniary losses. It stated that the plaintiff was to be examined by a specialist nominated by his own doctor and that until that examination was made the plaintiff could not "estimate a reasonable figure for settlement". This was said because, as stated above, it was one of the things which the defendant's solicitor in his letter of 8 October 1953 asked the plaintiff's solicitors to let him have.

There is before the Court the letter of instructions which the defendant wrote to Dr Teece for the purpose of the medical examination of the plaintiff. It stated that he was claiming damages in the sum of £5000 "for injuries sustained when he either jumped or fell from a moving train as his carriage was drawn past Daroobalgie station on 4.1.53". It does not appear what was the reason for the failure of the negotiations for the settlement of the action. At the trial, Dr Teece was asked whether he saw the plaintiff on 17 November 1953 and whether that was the first occasion on which he saw him. Then he was asked whether on that occasion he got "a history from" the plaintiff. He replied in the affirmative. These questions were asked without any reference to the letter of 8 October 1953, the "without prejudice" letter from the defendant's solicitor which induced the plaintiff to submit to the medical examination by the witness. Dr Teece was then asked "What history did you get?" The plaintiff's counsel objected to this question and relied upon the letter of 8 October 1953 to support the objection. The objection was disallowed. The answer of the witness to the question was that the plaintiff told him that on 4 January 1953 he stepped out of a slowly moving train as it had overrun the platform at which he desired to alight and fell down on the track. Having failed in his objection, Counsel obtained the production of the doctor's memorandum of the examination. It began as follows "4.1.

Stepped out of moving train as it had overrun platform". The rest of the memorandum is a summary of medical facts.

Counsel did not object to the witness giving evidence of the medical facts found by him on the examination of the plaintiff. This did not involve any waiver of the privilege which he claimed in respect of the statement the doctor said that the plaintiff made to him as to the cause of the accident. The statement was one made on an occasion which arose by reason of and in the course of the negotiations into which the parties entered for the settlement of the action. For the reasons which are stated above, I am of the opinion that the privilege of a "without prejudice" communication was applicable to the statement here in question, and that it was wrong to receive it in evidence. In this view it is not necessary for me to deal with the grounds of the appeal which concern the directions to the jury of which the plaintiff complains. I would allow the appeal.

Counsel for the defendant: N A Jenkyn QC and A H S Conlon

Counsel for the appellant: E S Miller QC and L K Murphy

Solicitor for the respondent: Sydney Burke, Solicitor for Railways

Solicitors for the appellant: R O Palmer & Hall, Forbes, by Clayton Utz & Co