Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Vero Insurance Limited v Rail Corporation New South Wales [2013] NSWCA 372
• Hearing dates: 23, 24 May 2013
• Decision date: 12 November 2013
• Before: Barrett JA (at [1]); Ward JA (at [170]); Gleeson JA (at [171])

Decision

1. Appeal allowed in part.

2. Vary Order (1) made in the Common Law Division on 17 August 2012 with respect to costs by omitting "up to and including 31 March 2011".

3. Set aside Order (2) made in the Common Law Division on 17 August 2012 with respect to costs.

4. Appeal otherwise dismissed.

5. That the respondents pay the appellant's costs of the appeal in so far as they relate to grounds of appeal 24, 25 and 26.

6. That the appellant pay the respondents' costs of the appeal except in so far as they relate to grounds of appeal 24, 25 and 26.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: INSURANCE - collision between train and car at level crossing - claim by railway authorities against insurer of car - whether car owner/driver incurred legal liability "as a result of an accident" - whether placing of the car in the path of the train was intentional or inadvertent - APPEAL - interference with judge's findings of fact - re-assessment of all evidence
• Legislation Cited: Insurance Contracts Act 1984 (Cth), s 51; Uniform Civil Procedure Rules 2005, r 20.26
• Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632; Rail Corporation NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
• Category: Principal judgment
• Parties: Vero Insurance Limited (Appellant); Rail Corporation New South Wales (First Respondent); Transport for New South Wales (Second Respondent)
• Representation: R J Burbidge QC/M K Scott/T L B Hickey (Appellant); G M Watson SC/D A Lloyd (Respondents); Lander & Rogers (Appellant); DLA Piper (Respondents)
• File Number(s): CA 2012/203064

Decision under appeal

• Citation: Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632; Rail Corporation NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926
• Date of Decision: 2012-06-08 00:00:00
• Before: Garling J
• File Number(s): SC 2008/289483

Judgment

1 BARRETT JA: When passing at high speed through a level crossing at Baan Baa, a settlement of about 75 inhabitants, on 4 May 2004, a passenger train struck a white Toyota Avalon motor vehicle owned by Mrs Phyllis Jeffries. Mrs Jeffries was in the driver's seat of the car and was killed. Rolling stock owned by the first respondent and railway infrastructure owned by the second respondent were extensively damaged.

2 Mrs Jeffries had insured the vehicle with the appellant under a Secure Motor Plus insurance policy. The respondents maintained that the appellant was liable to make good to them the loss and damage they had suffered. In order to press that claim, they brought proceedings against the appellant in the Common Law Division of the Supreme Court.

3 The claim against the appellant was a derivative claim in the sense that its success depended on a finding that Mrs Jeffries herself was liable for the loss or damage. The remedy sought by each of the respondents against the appellant was an order under s 51 of the Insurance Contracts Act 1984 (Cth) that Vero pay to it an amount equal to Vero's liability under the insurance contract in respect of Mrs Jeffries' liability to it. That section is in these terms:

"(1) Where:

(a) the insured under a contract of liability insurance is liable in damages to a person (in this section called the third party);

(b) the insured has died or cannot, after reasonable enquiry, be found; and

(c) the contract provides insurance cover in respect of the liability;

the third party may recover from the insurer an amount equal to the insurer's liability under the contract in respect of the insured's liability in damages.

(2) A payment under subsection (1) is a discharge, to the extent of the payment, in respect of:

(a) the insurer's liability under the contract; and

(b) the liability of the insured or of the insured's legal personal representative to the third party.

(3) This section does not affect any right that the third party has in respect of the insured's liability, being a right under some other law of the Commonwealth or under a law of a State or Territory."

4 At the centre of the claims made by the respondents was the proposition that Mrs Jeffries owed a duty of care in negligence to each of them and that she had, in the way she dealt with the Toyota on the occasion in question, breached that duty, thereby occasioning loss and damage to the respondents. From that base, the respondents pleaded that the policy issued by the appellant covered Mrs Jeffries in respect of her negligence and that, by virtue of the statutory provision, each was entitled to recover from the appellant an amount equal to Mrs Jeffries' liability.

5 The appellant, by its defence, pleaded that the policy did not respond in the way alleged by the respondents. That proposition was put on several alternative bases but, both at trial and in this Court, the real issue litigated by the parties was whether the circumstances were within the policy's definition of "legal liability":

"'legal liability' means that an Australian court finds, or we accept, that, as a result of an accident, a person is legally liable to pay compensation for . . ." (emphasis added)

6 The issue agitated both at first instance and in this Court is whether the collision between the train and the car was an "accident", it being accepted that it could not be regarded as an "accident" if Mrs Jeffries had intentionally placed the car in the path of the train. It was for the respondents, as plaintiffs, to show that the collision was an "accident".

7 In the result, the primary judge (Garling J) found that the respondents had established that the collision was "an accident" and ordered judgment for each respondent against the appellant ($5,392,327.14 in the case of the first respondent and $166,270.15 in the case of the second respondent). There were orders that the appellant pay costs (including costs on an indemnity basis from 1 April 2011) and interest on costs.

The appeal

8 By its notice of appeal, the appellant advances the general proposition that the policy did not respond to the claims made by the respondents (and that the primary judge was in error in finding that it did) because Mrs Jeffries intentionally drove the vehicle on to the railway line so as to bring about the collision. There are challenges accordingly to crucial aspects of the judge's fact-finding.

9 This Court must therefore make its own independent assessment of the facts and give effect to its conclusions about them: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [21]-[25], [27]. The Court must weigh conflicting evidence and draw its own inferences and conclusions - bearing in mind, however, that it has neither seen nor heard the witnesses, and making "due allowance in this respect". In Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, the majority of the High Court reiterated the rule that:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it".

The witnesses

10 The primary judge received evidence from a significant number of witnesses. Some of them had given statements to the police for the purposes of a coronial inquiry. Those statements and other witness statements were received into evidence and several witnesses also gave oral evidence. The witnesses fell into five groups.

11 The first group consisted of three persons who witnessed relevant events. Geoffrey Houlihan was the driver of the train. He remained at the controls at all material times. With him in the driver's cabin was the train's passenger services supervisor, Ronald Curtis. Mr Houlihan and Mr Curtis had both worked on trains for some forty years. Both saw the white Toyota as the train approached the level crossing. Mr Houlihan watched to the point of impact. Mr Curtis turned his head away before impact. The third eyewitness was Donald Nott (known as "Notty" and "Noddy") who watched relevant events from the bar of the Railway Hotel near the level crossing.

12 The second group of witnesses consisted of persons who gave evidence about Mrs Jeffries' activities on the day in question, 4 May 2004. Her neighbour and close friend, Shirley Allaway, gave evidence of their meeting in Narrabri (about 40 kilometres from Baan Baa) and then again after they returned separately to Baan Baa. Helen Starr gave evidence of a conversation she had with Mrs Jeffries in Narrabri. Rodney Jeffries, Mrs Jeffries' son, gave evidence of a conversation with his mother while she was in Narrabri. Michael Shields gave evidence of having seen Mrs Jeffries driving her car in Baan Baa very shortly before the collision.

13 The third group of witnesses consisted of persons who were able to give evidence about Mrs Jeffries' life and activities. These included, of course, Rodney Jeffries and Mrs Allaway. Dr Kerry Moroney, who was Mrs Jeffries' general practitioner for more than 30 years, gave evidence of her medical history as well as opinion evidence. Dr Moroney's practice was located in Narrabri. His practice manager, Carole Connole, was a friend of Mrs Jeffries but was away on leave on the day in question. Mr Robert Shields, a neighbour and acquaintance, gave evidence of Mrs Jeffries' having spoken about suicide. Donald Nott, one of the eyewitnesses, had been in a close personal relationship with Mrs Jeffries for some two years up to a point about four months before the collision.

14 The fourth group of witnesses consisted of persons who gave evidence about the Toyota vehicle. David Nairn, a motor mechanic at Narrabri, had serviced the car regularly since Mrs Jeffries bought it new in 2000. Senior Sergeant Unicomb and Gregory Tanti gave opinion evidence based on inspection of the remains of the car after the collision. Detective Senior Constable Sims conducted a "re-enactment" using a like Toyota Avalon.

15 The fifth group of witnesses consisted of medical practitioners. Dr Moroney has already been mentioned. Opinion evidence was also given by psychiatrists Dr Skinner, Dr Klug and Dr Phillips. Those three witnesses prepared separate reports but were cross-examined concurrently. Their evidence, like that of Dr Moroney, concentrated on matters relevant to the possibility that Mrs Jeffries had taken her own life.

16 The primary judge also had before him a quantity of documentary evidence including, in particular, a report of an investigation of the collision by the Office of Transport Safety Investigation ("OTSI"). There were also reports from transport engineers retained on both sides.

The scene of the collision and the approach of the train

17 The primary judge had the considerable advantage of a view in company with senior counsel for the parties. This included not only a physical inspection of the level crossing and its surrounds (indicating, of course, important matters such as lines of vision) but also travel in the driver's cabin of a like train at like speed along the same stretch of track. That enabled the judge to obtain for himself precisely the perspective that Mr Houlihan and Mr Curtis had as they watched Mrs Jeffries' car at the crossing.

18 The level crossing was not fitted with boom gates or other barriers to stop vehicular traffic. Nor were there flashing warning lights of the kind activated by an approaching train. There was, in the face of approaching road traffic, a warning sign consisting of crossed white boards with the words "railway crossing" in black letters on them and a conventional "stop" sign on an octagonal red board below.

19 As Mrs Jeffries drove towards the level crossing, the approaching train was on the section of the track to her right. From the perspective of those in the driver's cabin of the train, the car was approaching the level crossing from the left. The Railway Hotel was on the opposite side of the railway line to Mrs Jeffries' approaching car (that is, to the right of the line when viewed by persons in the train) and on the side of the road closer to the approaching train. The train struck the car on the driver's door, that is, on the right side.

20 It is pertinent to record the uncontroversial evidence about the rate of the train's approach, the sounding of its horn and the application of its emergency brake. All these matters were recorded by the train's mechanism in such a way as to be retrievable after the event.

21 The train consisted of two cars that had been detached from the Sydney-Armidale service at Werris Creek in order to proceed separately to Moree. After passing through Gunnedah and Boggabri and as it approached Baan Baa, the train was travelling at 143 kilometres per hour (about 38.8 metres per second). In accordance with standard procedure, the driver sounded the horn on approach to the Baan Baa level crossing. This blast of the horn began 590 metres (15.2 seconds) short of the point of eventual impact and continued for 120 metres (about three seconds). A second blast of the horn began at 396 metres (10.2 seconds) from impact and continued for almost 200 metres (about five seconds). A third blast of the horn followed almost immediately, commencing 110 metres (2.8 seconds) from the point of eventual impact. The emergency brake was applied 234 metres short of impact. Applied at a speed of 140 kilometres per hour, the emergency brake would bring the train to a halt after 700 metres.

22 The speed of the train at the point of impact was 134 kilometres per hour.

23 As I have said, the primary judge was able to experience for himself the progress of a like train over the relevant stretch of track.

Mrs Jeffries' activities on the day

24 It will be necessary to look in some detail at evidence about Mrs Jeffries' activities on the day in question. That evidence was given by Mrs Allaway, Rodney Jeffries, Ms Starr and Michael Shields. At this point, it is sufficient to record some basic facts.

25 Mrs Jeffries lived with her daughter (and the daughter's child) in a house at Baan Baa owned by her. Her parents lived in Baan Baa. She had returned to live there after her divorce in about 1996. She had lived with her husband in Narrabri. He continued to live there. Her son and his wife and family lived in Narrabri.

26 On 4 May 2004, Mrs Jeffries started the day by driving from her home at Baan Baa to Wee Waa where she had a part-time housekeeping position with a family that was about to leave the district and move to Queensland. From Wee Waa, she drove to Narrabri (about mid-way between Wee Waa and Baan Baa) where she met her friend and neighbour, Mrs Allaway. They spent the period from about 2.30pm to 4.15pm or so in one another's company at Narrabri and West Narrabri, except for about half an hour commencing at about 3.30pm when Mrs Allaway was being treated by a doctor.

27 While in Narrabri, Mrs Jeffries visited her son at his place of work and went to Dr Moroney's surgery, where she spoke with Ms Starr.

28 Mrs Jeffries and Mrs Allaway drove back to Baan Baa in their separate cars, one behind the other for most of the way. On arrival, they spoke further at Mrs Allaway's house, including about a planned trip to Inverell the next day. Mrs Jeffries was to be admitted to Inverell Hospital for minor surgery. Mrs Allaway planned to accompany her to Inverell.

29 Mrs Jeffries left Mrs Allaway's house saying that she was going to visit her parents. They lived in Baan Baa on the other side of the railway line. Mrs Jeffries drove across the railway line towards her parents' house but turned back before arriving there. Michael Shields saw her driving towards the railway on her return journey. It was on that return journey that the collision occurred.

The decision of the primary judge

30 The primary judge delivered two judgments. The first (Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632, 8 June 2012) dealt with the question of liability. The second (Rail Corporation NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926, 17 August 2012) was concerned with costs. Except as otherwise stated, references in these reasons to paragraphs of the judge's judgment are references to paragraphs of the first judgment.

31 The judge made a close examination of a substantial quantity of evidence. His conclusion on the central question was stated in this way (at [281]):

"I have come to the conclusion that Mrs Jeffries did not commit, and was not engaged in the act of committing, suicide at the time of the collision between her car and the train. The reason for the collision was that she was acting inadvertently when she allowed her car to move slowly onto the tracks. She did not place her car there deliberately."

32 This statement of conclusion was preceded by the following (at [280]):

"Although I have had regard to all of the facts described in the evidence and taken them into account, the matters which I regard as having the greatest weight are these:

(a) Mrs Jeffries suffered from depression. It was of long standing, but not sufficiently serious to warrant referral to a specialist psychiatrist.

(b) There existed a number of intercurrent stressors, which meant that she was at risk of committing suicide. These stressors had, largely, been in existence for some years, although in the six months or so since the break up of her relationship with Mr Nott, they had probably been increasing.

(c) The incidence of suicide is relatively low in the community.

(d) In the days leading up to the collision, Mrs Jeffries had not displayed any sign of overt decompensation or any signs of obvious and significant deterioration in her mental health.

(e) Her long standing psychological resilience had continued up to the time of the collision. She had not attempted suicide at any time prior to the collision, and she did not leave a suicide note, or tell anyone that she intended to commit suicide.

(f) She spent an entirely normal day on 4 May 2004. Her mood and attitude on that day was cheerful. She was engaged in forward planning, and was happy that her close friend, Mrs Allaway, was going with her to Inverell Hospital. She displayed no ambivalence towards or apprehension about the planned surgery.

(g) In the few minutes leading up to her leaving her home, she seemed to Mrs Allaway to be her usual cheerful and positive self.

(h) She left home to visit her parents. Whilst on that journey, for an unidentified reason, which was not connected to her seeing or hearing the train, she did a U-turn and drove back towards her house.

(i) Thereafter, the manner of her driving up until she stopped near the Stop sign at the crossing, including her speed and braking, was unremarkable. It accorded with her usual habit of driving in Baan Baa. She waved to Mr Shields as one would normally expect.

(j) The manner in which her car entered onto the tracks and came to the middle of them where the collision occurred, for the reasons earlier discussed, was a low speed continuous one, during which the car did not stop on the tracks for a discrete identified period.

(k) The car's movement is explained by the fact that it was in first gear, and creeping forward at less than 2km/h because the foot brake was not activated.

(l) There are a number of hypotheses about Mrs Jeffries' behaviour in the car which are consistent with misadventure, inattention or distraction. The facts do not on the probabilities, support a hypothesis of suicide, although the possibility of it cannot be excluded."

The challenges to fact-finding

33 The appellant's contentions are, in summary, as follows:

(a) In reaching the conclusions stated at (d), (e) and (f) of [280], the judge failed to deal with the following evidence:

(i) Mrs Jeffries' hopes of a resumption of an intimate relationship with Mr Nott had not been realised;

(ii) In the days before her death, Mrs Jeffries had been composing a letter to Mr Nott which demonstrated her anxiety to resume the relationship and her disturbed state;

(iii) About an hour before the collision, Mrs Jeffries visited Dr Moroney's surgery in Narrabri and had an unusual conversation with the receptionist, Ms Starr; and

(iv) Upon her return to Baan Baa, Mrs Jeffries set out to drive to her parents' house in that town, but turned back before reaching her destination and returned to the level crossing.

(b) In reaching the conclusion stated at (i) of [280], the judge failed to deal with the following evidence:

(i) Two eyewitnesses said that the car stopped on the railway line and the evidence of the third was equivocal. In addition, technical evidence indicates that the car did stop on the line;

(ii) Irrespective of whether the car stopped on the line, Mrs Jeffries placed it, first, in a position where it was "possibly foul of the tracks" and, later, at a point where the train struck the driver's door;

(iii) There was no mechanical fault that prevented acceleration of the car in a forward direction to the far side of the crossing. In any event, a rational response, after the first stopping "possibly foul of the tracks" would have been to reverse to safety;

(iv) There was time for either such manoeuvre to be completed; and

(v) The car's data log showed that there was no attempt to accelerate, even when the presence of the train was impossible to miss.

(c) In reaching the conclusion at (k) of [280], the judge failed to deal with the following evidence:

(i) Whereas there was evidence from Senior Sergeant Unicomb (based on an examination of the filaments of bulbs in the car's brake lights) that the brake was not applied at the time of impact, there was evidence from the car's data log that the brake was applied at that point; and

(ii) Senior Sergeant Unicomb had, in any event, given evidence which made his assessment an unreliable indicator.

(d) In reaching the conclusion stated at (l) of [280] regarding a number of hypotheses consistent with misadventure, inattention or distraction, the judge provided no elaboration or explanation; and there is nothing to displace the inference of deliberate action.

(e) The conclusion stated at [281] is challenged on the same basis as (l) of [280].

34 Two central issues thus present themselves for consideration upon a review of the judge's fact-finding:

1. Did Mrs Jeffries deliberately place the car in the path of the approaching train?

2. Were Mrs Jeffries' behaviour and circumstances on the day in question and in the preceding period indicative of a likelihood that she intended to end her life?

Evidence on whether the car stopped on the railway line

35 The appellant's case at trial was that the car came to a halt on two relevant occasions: first, when it was not on the railway track but its nose was at risk of being struck by the train (this position was referred to as being "foul of the line"); and, second, when it was on the track directly in the path of the oncoming train. Counsel for the appellant made this clear to the judge in opening his client's case.

36 There is no dispute that the car stopped on the first occasion. The primary judge found that the car did not stop a second time but, rather, continued in motion, albeit slowly, until the train struck it.

37 That finding was made in the light of evidence to which it is now necessary to turn. I begin with the evidence of the eyewitnesses.

38 Mr Houlihan testified at trial that he watched the car approach the crossing and that it stopped in a position where he was "concerned of the possibility that it was a bit too far forward". The car then moved forward again. The speed was "very slow". Mr Houlihan did not know (or could not remember) whether it stopped again or was still moving when the train struck it.

39 Mr Curtis' evidence at trial was that he saw the car approach the crossing and stop at a point where he thought there was a risk that the train might hit it. The car then moved forward "very slowly" and came to a halt again at a point where it was directly in the path of the train. Mr Curtis then turned his head away because he knew that the car driver was almost certain to be killed in the ensuing crash.

40 Mr Nott gave evidence that he watched the events from the bar of the Railway Hotel, about 100 metres from the railway line. His perspective was such that the car was approaching from the opposite side of the railway line. His view of it was more or less a head-on view. He saw the car stop just short of the line. He did not watch continuously thereafter. He did, however, see the collision, at which point the car "appeared to be" stationary but not "smack in the middle of it" (that is, the path of the train), an observation he qualified by saying:

"Well, I'm only guessing, from the angle".

41 The evidence given by Mr Houlihan and Mr Curtis at trial was consistent with statements they made to police very soon after the event and statements prepared for the Coroner. In those contexts, Mr Houlihan said that, after he applied the train's emergency brake "the car started to come forward slowly and then I was on her"; and "I cannot tell if the car stopped across the tracks or was still moving forward as I struck it". Mr Curtis said:

"She was stopped when we hit her. Then we hit her dead centre. I believe we hit her dead centre".

42 Mr Curtis also said that the car "moved slowly across the down and upside rail lines, and stopped; about 100 metres prior to the impact I turned my head away".

43 Mr Nott said in his police statement, referring to the point at which he had turned his gaze back to the car:

"I saw that Phyllis' car was still stopped, I could not tell from the angle I was looking if her car had moved forward from where it had first stopped."

44 The eyewitness evidence seems to reduce itself to this:

1. Mr Houlihan could not say whether or not the car stopped a second time and whether or not it was moving at the point of impact.

2. Mr Curtis was not watching the car at the point of impact but said that it had come to a halt a second time before he turned his head away. Mr Curtis averted his gaze about 100 metres before impact. Given the speed of the train, his eyes were therefore off the car for about three seconds before the train struck it.

3. Mr Nott said that the car "appeared to be" stationary on the line but that he was "only guessing" and "he could not tell from the angle" of his view if the car had moved forward from where it had stopped on the first occasion.

45 It is necessary to refer next to expert evidence given by Mr Tanti about information recorded in and retrieved from two systems within the car - the electronic control unit (or ECU) which reads values from a number of sensors within the engine bay and interprets the data received; and the anti-lock braking system (or ABS) computer which regulates and records operation of the wheels and brakes, including speed.

46 The information extracted by Mr Tanti indicated that, after negotiating a right hand turn and proceeding for 60 metres (as it undoubtedly did immediately before reaching the level crossing), the vehicle came to a stop, with the foot brake applied. Being an automatic transmission vehicle, it remained in "drive" and therefore in first gear ready to proceed. That situation did not change. The foot brake remained depressed. But the eyewitness accounts show that the car moved forward after its initial stop. Mr Tanti explained this. If the driver's foot remains lightly on the brake, the "creep factor" carries the vehicle forward against the lightly applied brake and the systems record the continuing operation of the brake. The systems also record speed. From the time the car came to a halt with the foot brake applied, the speed was recorded as two kilometres per hour. But, as Mr Tanti made clear, a recording of a speed of two kilometres per hour indicates that the speed was anything from zero to two kilometres per hour at that time.

47 Mr Tanti's evidence about information extracted from the car's systems was thus to the effect that, after proceeding 60 metres from a right-hand turn (no doubt an elbow bend on the approach to the level crossing), the car was braked to a halt, that the brake remained in the activated position at all times thereafter; and that, while the brake was activated, the car was either stationary or moving forward at a speed not exceeding two kilometres per hour. Because the eyewitness accounts establish that the car did move forward very slowly after its initial stop, the conclusion consistent with Mr Tanti's evidence is that the forwards movement was at a speed not exceeding two kilometres per hour.

48 Mr Tanti's report included four "frames" of ABS diagnostic data, the first of which records the position at a time when a right hand turn was being undertaken with the brake applied. Each of the three other frames depicts the position as it existed at a point 18 to 20 metres from the point depicted in the immediately preceding frame. The distance between the point at which the first and last frames were recorded is thus of the order of 54 to 60 metres. The last frame showed that the car was stationary or moving forwards at not more than two kilometres per hour with the brake activated. Mr Tanti made it clear in his oral evidence that a new frame was created and recorded whenever some change occurred but that, if the car remained in the same state for a period, the most recently created frame would, as it were, continue to apply throughout that period. The last frame may therefore be accepted as depicting the stopping of the car at the crossing and its being, for an unascertainable period, in a situation where the brake was activated (either fully or partially, in the sense that the driver's foot was on the pedal either firmly or lightly) and the vehicle was stationary or moving forwards at not more than two kilometres per hour.

49 Other relevant evidence extracted from the vehicle after the event was given by Senior Sergeant Unicomb, a police expert in traffic crash investigation. He examined the filaments in the bulbs of the car's brake lights. The reason he did so was explained by him as follows:

"The filaments in a bulb that are incandescent or hot at the time of severe impact will display signs of deformation due to the shock of an impact and the fact that the filament is pliable when hot. A filament which is deformed when hot due to collision forces will maintain that deformation when it has cooled. Bulb examination is a good indicator of whether tail lights/brake lights were in operation at the time of impact."

50 Senior Sergeant Unicomb inspected the remains of Mrs Jeffries' car some months after the collision and removed relevant bulbs which he tested by inspecting their filaments. After reporting the state of each filament, he concluded:

"My conclusion is that due to the physical appearance of these bulbs, neither the brake lamps nor the tail lights were in operation at the time of the impact."

51 Senior Sergeant Unicomb went on to say that he could not determine the period for which the brake lights were not in operation. Filaments cool rapidly. He saw it as consistent with his findings that Mrs Jeffries may have removed pressure from the brake pedal momentarily before the collision.

52 It is noteworthy that Senior Sergeant Unicomb was not cross-examined and that it was the appellant that tendered his statement.

53 A particular proposition requiring evaluation is that the car remained stationary in the path of the train for eight seconds. The proposition is important because of the part it played in the briefing of the expert witnesses who gave psychiatric evidence. I shall explain that significance presently. First, it is necessary to examine the accuracy of the proposition (assuming, of course, that the car did come to a halt on the track itself).

54 The proposition in question might perhaps be extracted from two sources, being the OTSI report and the statement for the Coroner prepared by Detective Senior Constable Sims. The OTSI report referred to evidence of three witnesses that the car moved slowly on to the track and to information retrieved from the train's data logger. The report then continued:

"Information from the data logger establishes that the train driver made a second and an emergency application of [the train's] horn when he was certain that [the car] was foul of the line. Approximately eight seconds later [the train] collided with [the car]. OTSI considers that this extended period of 'dwell time' on the track is inconsistent with the prospect of the driver of [the car] having simply been distracted." (emphasis added)

55 Detective Senior Constable Sims said in his statement:

"At 5.10.04pm at 306.95 metres from impact and in response to the position of the deceased's vehicle, Houlihan began a 6 second sounding of the whistle. It was at this time or just prior to; that the deceased's vehicle moved forward and stopped over the centre of the tracks.

At 5.10.06 at 229.73 metres and 2 seconds into the sounding of the whistle, the Train had travelled a further 77.22 metres. Houlihan applied the emergency brake. For the next 8 seconds the average speed of the train was reduced to (28.7m/s). The deceased's vehicle remained stationary across the centre of the tracks for the remaining 8 seconds until impact."

56 On the hearing of the appeal, counsel for the appellant submitted that the stated period of "'dwell time' on the track" was not a period during which the car remained stationary straddling the railway lines but the period for which "it was within the confines of the track".

57 It is thus clear that the appellant, although embracing the proposition that the car came to a halt in the path of the oncoming train, does not seek to sustain any finding that it remained stationary in that position for eight seconds.

The judge's findings on whether the car stopped on the railway line

58 The primary judge considered it clear, on the probabilities, that Mrs Jeffries drove back towards the crossing and, on her approach, was travelling at a speed of about 18 to 19 kilometres per hour, with the car slowing as it neared the crossing.

59 His Honour also made findings as follows:

1. The car was seen approaching the crossing by Mr Houlihan and Mr Curtis.

2. It was travelling reasonably slowly and came to a stop at the crossing.

3. At that point, the car was in a position where it was thought by Mr Houlihan and Mr Curtis, albeit from a distance, that it might be foul of the line.

4. There was no certainty that the car was actually foul of the line, but that is how it appeared to them.

5. The vehicle was in gear and the engine was idling so that, unless the brakes were activated by pressing the brake pedal, the car would move forward slowly, or creep forward.

6. This is likely to have been what both Mr Houlihan and Mr Curtis saw.

7. At the moment of collision, the car's brakes were not on, and the brake pedal was not depressed, so that the car must have been moving, albeit slowly.

8. No one had given evidence that the car was seen to have moved on to the tracks, stopped for an identified period of time and then started to move again.

9. If that is what happened, it would have been obvious to Mr Houlihan and Mr Curtis (if he was maintaining this view, and before he turned away).

10 Mr Houlihan's observations were that up until the moment of the collision, the car did not stop at all but rather that it kept moving.

11. The accelerator was not activated at any time after the car came to a stop before it entered on to the track in front of the train.

12. The car was not purposely driven by use of the accelerator on to the middle of the railway track, nor in the moment before the collision was the car being accelerated off the line, as if the driver had suddenly become aware of the impending arrival of the train.

13. The probabilities accorded with the evidence of Mr Houlihan who said that the car was at no time stopped for an identified or discrete period in the centre of the railway tracks, but that it was moving forward slowly up to the time the train arrived.

14. To the extent that Mr Curtis' account differed (because he said that he saw the car come to a stop in the middle of the track), the evidence of Mr Houlihan was to be preferred because it accorded most closely with the other evidence, and the probability of what occurred.

15. That conclusion was consistent with the evidence of Mr Tanti because at no time did the car move forward at more than two kilometres per hour after its initial stop at the crossing.

60 The primary judge thus found that the car did not come to a halt across the railway track for eight seconds or any other period.

Assessment of those findings

61 Four aspects of the judge's findings warrant comment.

62 In the first place, it was incorrect to say that Mr Houlihan's evidence was that the car was at all times in motion after it crossed on to the railway line: see items 6, 10, 13 and 14 above. Mr Houlihan did not know or could not recall whether it continued in motion or stopped for a second time.

63 Second, the finding that, at the moment of collision, the brakes were not on and the brake pedal was not depressed is borne out by the evidence of Senior Sergeant Unicomb about the state of the lamp filaments. There is a question whether it is borne out by Mr Tanti's evidence. In my opinion, the finding cannot be regarded as inconsistent with Mr Tanti's evidence as it was not shown that the last of the "frames" from the ABS computer on which he relied represented the position in the period immediately before the impact.

64 Third, rejection of Mr Curtis' account on the basis that it was inconsistent with that of Mr Houlihan proceeded on the incorrect basis that Mr Houlihan had said that the car continued moving. However, the technical evidence was consistent with continuing movement. That, coupled with Mr Curtis' having looked away, is sufficient to cast relevant doubt over Mr Curtis' recollection.

65 Fourth, the judge discounted the evidence of Mr Nott who was regarded as an unreliable witness particularly when it came to matters of detail concerning the car's movement. His Honour was correct to regard that evidence as unhelpful on the matter of the position and progress of the car. Mr Nott's line of vision was awkward and did not allow him to make an accurate assessment of whether the oncoming vehicle was, at a particular point, stationary or moving forwards slowly.

66 The four matters just mentioned are insufficient to undermine the judge's ultimate conclusion that the car did not come to a halt across the railway track for eight seconds or any other period and continued to move, albeit slowly. That conclusion was available on the evidence - particularly that of Senior Sergeant Unicomb which was not challenged - and his Honour did not err in reaching it.

Dr Moroney's evidence

67 Dr Moroney's evidence was of particular significance because of his firm view that Mrs Jeffries took her own life and the several factors to which he referred in explaining that opinion.

68 Dr Moroney was Mrs Jeffries' general practitioner for more than three decades. According to his clinical records, he saw her on more than twenty occasions in the period of three years immediately before her death. In the same period, she saw specialists on at least eight occasions on referral from Dr Moroney. The main problem during that period was gynaecological in nature and manifested itself in incontinence.

69 Mrs Jeffries was due to have surgery for this condition at Inverell Hospital a day or two after her death. She was to go to Inverell on 5 May 2004 for an expected overnight stay only.

70 It was Dr Moroney's opinion that Mrs Jeffries suffered from depression and had done so over a long period. He said that his notes did not fully record his findings concerning depression as Mrs Jeffries "would not let me use the word depression or write it in the notes as she was paranoid about my girls or anybody finding out the true problem". Dr Moroney gave this as the reason why only one reference to depression appeared in his records after 9 June 2001 (the single reference was on 8 October 2003). Also noteworthy is the absence from Dr Moroney's records of any reference to prescribing of antidepressants after 26 April 2001, although he did say that he sometimes gave prescriptions without recording them (to save the patient having to pay a fee) and that Mrs Jeffries, on her own initiative, stopped taking antidepressants about seven months before her death.

71 Dr Moroney identified eight factors which, he said, contributed to a depressed state in the lead-up to Mrs Jeffries' death. They were, in summary:

(a) the fact that the family at Wee Waa with which Mrs Jeffries had a part-time housekeeping position was about to move to Queensland and that her source of income would evaporate;

(b) the fact that her ex-husband phoned her almost daily to discuss his problems;

(c) the lifestyle of her daughter which distressed her greatly;

(d) the end of her relationship with Mr Nott;

(e) the fact that her house was old, hard to keep clean and in need of a new kitchen;

(f) her ongoing gynaecological problem;

(g) the fact that her car was getting older and she could see no way of replacing it when replacement became necessary; and

(h) a breakdown in her relationship with her mother-in-law about six months before her death.

72 Dr Moroney professed himself "90 to 95 per cent certain" that Mrs Jeffries committed suicide.

73 In addition to the eight factors just mentioned, Dr Moroney referred to his understanding of circumstances in which Mrs Jeffries visited his surgery on the day of her death. It was Dr Moroney's habit to arrive at the surgery each day at about 4pm. He said that Mrs Jeffries often came shortly before 4pm in the hope of seeing him informally before he began attending to patients. Some years after the event, Dr Moroney was told by his practice manager, Ms Connole, that Mrs Jeffries had come to the surgery shortly before his arrival on 4 May 2004 "in a highly agitated state". Ms Connole had not herself seen Mrs Jeffries on that occasion but had been told of the visit by Ms Starr, another employee. Ms Connole was in fact away on leave at the time.

Mrs Jeffries' visit to Narrabri on 4 May 2004

74 Particularly in light of the matters upon which Dr Moroney placed emphasis (and which, as will be seen, were referred to in the medico-legal reports of the psychiatrists), it is relevant to note Mrs Jeffries' movements on the day of her death, remembering that the collision at Baan Baa occurred at about 5.10pm.

75 Mrs Jeffries had driven to Wee Waa to work on the morning of 4 May 2004. Narrabri was on her route home to Baan Baa. She stopped at Narrabri and met her friend Mrs Allaway. They met at Fosseys some time in the early afternoon. Mrs Allaway had driven to Narrabri from Baan Baa separately in her own car. She had a 2.30pm medical appointment at a practice other than that with which Dr Moroney was associated. The appointment was postponed until 3.30pm. Mrs Allaway spent time with Mrs Jeffries while she waited. They browsed in shops. Mrs Jeffries tried on a hat. Mrs Allaway's car was parked near Bi-Lo where she had bought groceries and sloppy joes that were on special. She bought the latter to "take away" - a reference to her plan to accompany Mrs Jeffries to Inverell the next day.

76 Mrs Jeffries drove Mrs Allaway from the Bi-Lo carpark to the doctor's rooms for the postponed appointment at 3.30pm. They went into the premises together. Mrs Jeffries was sitting in the waiting room when Mrs Allaway went in to see the doctor. Mrs Allaway's treatment involved a local anaesthetic and she had to wait for the anaesthetic to take effect before the doctor could attend to her. She was uncertain how long the treatment took. She was asked in cross-examination whether it might have taken an hour or half an hour. She was uncertain about the precise time but thought it was of the order of half an hour.

77 When Mrs Allaway came back to the waiting room, Mrs Jeffries was there. They left the premises and went together in Mrs Jeffries' car back to Bi-Lo and then set off towards Baan Baa in their respective cars, having agreed to meet on the way at West Narrabri where they stopped to have coffee together before continuing on separately to Baan Baa.

78 The foregoing comes from the evidence of Mrs Allaway. Two other witnesses gave evidence of events in Narrabri on 4 May 2004: Rodney Jeffries and Ms Starr.

79 Rodney Jeffries testified that his mother called to see him at his place of work in Narrabri between 3pm and 4pm and spent about fifteen minutes with him. His work premises were about 150 metres from Dr Moroney's surgery. Mrs Jeffries told her son that she was going to Inverell Hospital the next day for a minor operation and that she would be "in one day and out the next". She said that she had had similar operations before and that it was not a problem; also that Inverell Hospital was the only hospital at which she could have the operation at the time.

80 Ms Starr gave evidence about Mrs Jeffries' visit to Dr Moroney's surgery to which the latter made reference in his evidence. Ms Starr said that Mrs Jeffries "dropped in" at some time before Dr Moroney arrived at about 4pm. Ms Starr said that Mrs Jeffries "seemed bright" but "lingered around longer than usual and it seemed to me that she wanted someone to talk to".

81 Ms Starr did not refer to any particular reason why Mrs Jeffries should have visited the surgery. It may be that she called in for a chat with her friend Ms Connole, not knowing that Ms Connole would not be there. Perhaps she hoped to catch Dr Moroney briefly before his first patient. A more concrete reason, although not mentioned by Ms Starr (who was not cross-examined), might be found in the evidence of Dr Moroney and Mrs Allaway.

82 Dr Moroney had recently received a pathology report concerning Mrs Jeffries. He accepted in cross-examination that blood tests are routinely ordered in advance of surgery and that Mrs Jeffries was about to have surgery. Dr Moroney had no recollection of Mrs Jeffries' having collected the blood test results but conceded the possibility that she called at the practice to collect them so that she could take them with her to Inverell the next day. He confirmed that Mrs Jefferies would have been aware, from her long experience of his practice, that test results were routinely handed over by his staff, without any need to see the doctor himself.

83 Mrs Allaway said in a statement that, while they were in Narrabri, Mrs Jeffries told her "that she had just gone and got a blood test for her operation that she was going to have at Inverell later that week". Mrs Allaway placed this part of their conversation during the time they were browsing in shops before Mrs Jeffries drove Mrs Allaway to her postponed appointment at 3.30pm.

84 Having regard to the whole of the evidence about Mrs Jeffries' visit to Narrabri, it is possible to assemble the following chronology:

From about 2.30pm to about 3.30pm:	Mrs Jeffries and Mrs Allaway are together browsing in shops and waiting for Mrs Allaway's 3.30pm appointment.
About 3.30pm:	Mrs Allaway leaves Mrs Jeffries sitting in the waiting room when she goes in to see the doctor.
Between 3pm and 4pm:	Mrs Jeffries visits her son's place of work and is there for about 15 minutes.
Shortly before 4pm:	Mrs Jeffries calls at Dr Moroney's surgery and chats with Ms Starr.
About 4pm:	Mrs Jeffries is waiting for Mrs Allaway in the doctor's waiting room when she emerges after treatment.
Soon after 4pm:	Mrs Jeffries and Mrs Allaway drive separately to West Narrabri where they have coffee before proceeding home to Baan Baa.
At some undefined point:	Mrs Jeffries collects blood test results from Dr Moroney's surgery.

85 Against this background, there is a distinct likelihood that Mrs Jeffries went to Dr Moroney's surgery for the express purpose of collecting the blood test results and that, although Mrs Allaway refers to Mrs Jeffries' having said some time before 3.30pm that she had already collected the results, the true position was either that Mrs Jeffries' statement to Mrs Allaway was a statement of future intention made before 3.30pm or a statement of accomplished fact made some time after about 4pm when both had completed their visit to Narrabri and were about to go home separately after having coffee at West Narrabri.

86 It is possible but unlikely that Mrs Jeffries went to Dr Moroney's surgery twice - once to collect the results and then later either to try to see Dr Moroney informally or to see her friend Ms Connole. But if she did go to the surgery at an earlier point to collect the results and again shortly before 4pm in the expectation of seeing Dr Moroney or Ms Connole, there was a good explanation for Ms Starr's impression that Mrs Jeffries "lingered around longer than usual and it seemed to me that she wanted someone to talk to". She was filling in time before she went back to collect Mrs Allaway to drive her back to Bi-Lo. Rather than sit alone in the waiting room while Mrs Allaway was being treated, she took the opportunity to visit her son and also to call at Dr Moroney's surgery.

87 Neither Rodney Jeffries nor Mrs Allaway detected anything unusual in Mrs Jeffries' demeanour or behaviour while with her on 4 May 2004. Rodney Jeffries had the impression that his mother was not worried about the forthcoming surgery and had a positive attitude to it. Mrs Allaway's impression about the surgery was the same. Added to that, Mrs Allaway spent time with Mrs Jeffries at the shops, on the way from Bi-Lo to the medical appointment and back, at the coffee shop at West Narrabri and, as will be seen presently, after they returned to Baan Baa. Mrs Jeffries appeared to Mrs Allaway to be "in her usual good mood" and making jokes.

88 Having regard to the whole of the evidence about the visit to Narrabri, it can be said that the impression conveyed to (and by) Dr Moroney that Mrs Jeffries was, on the afternoon of 4 May 2004, in "a highly agitated state" had no reliable foundation.

Events after the return from Narrabri

89 Mrs Allaway gave evidence that Mrs Jeffries' car followed her own most of the way from West Narrabri to Baan Baa. Given that the driving time from Narrabri to Baan Baa is about about 20 or 25 minutes, that they stopped for coffee at West Narrabri after leaving the Narrabri medical premises some time after 4pm and that they lingered in West Narrabri while Mrs Allaway smoked a cigarette and Mrs Jeffries tried on sunglasses, it must have been around 4.45pm by the time they arrived at Baan Baa.

90 Upon arrival, Mrs Jeffries went to Mrs Allaway's house. Mrs Allaway showed Mrs Jeffries the sloppy joes she had bought for the trip to Inverell the next day. Mrs Allaway walked to Mrs Jeffries' car with her and told her she would phone her that night about final arrangements for Inverell as there was some possibility that she would not be able to go as her mother was not well. Mrs Jeffries then drove off, waving to Mrs Allaway as she did so. She said that she was going to visit her parents.

91 Michael Shields lived at Baan Baa on the opposite side of the railway line to Mrs Jeffries and Mrs Allaway. After arriving home at about 4.55pm, he did some chores and, when returning from his shed, saw Mrs Jeffries' car pass his house. It was travelling from the direction of the parents' house towards the railway line and the level crossing. The passenger's side of the car was closer to Michael Shields but he saw Mrs Jeffries in the driver's seat. He waved to her and she waved back. The windows of the car were closed on both sides. Soon after seeing Mrs Jeffries, Michael Shields heard the horn of the train which he knew passed through Baan Baa around 5.10pm or 5.15pm each day.

92 It is not in dispute that Mrs Jeffries' car, when struck by the train, was proceeding from the direction of her parents' house towards her own home - that is, in the direction that Michael Shields saw her driving. It follows that, after she left Mrs Allaway, Mrs Jeffries drove across the level crossing towards her parents' home, proceeded for some distance and later travelled in the opposite direction, past Michael Shields' house, back to the crossing where the train struck the car at about 5.10pm. There is nothing to suggest that she ever reached her parents' home. The technical evidence about the car's movements as recorded within its systems indicates that it turned back before travelling the distance that it would have been necessary to travel in order to reach the parents' house.

93 The evidence suggests no reason why Mrs Jeffries turned back. The judge surmised that she may have forgotten something that she intended to take to her parents. That, of course, was speculation which merely served to emphasise the lack of apparent reason.

94 It was discovered after her death that Mrs Jeffries had laid clothes out on her bed as one would if planning to pack for a trip. She was, of course, due to depart for Inverell the next day.

Music in the car

95 As I have said, Michael Shields observed that the windows of the car were closed when Mrs Jeffries drove past his house. Several witnesses mentioned Mrs Jeffries' habit of playing music loudly in the car. She spoke to both Mrs Allaway and her son about problems she had with the CD player in the car. Mr Nairn, who serviced the vehicle regularly, referred to these problems and said that the CD player had been replaced.

96 Mr Nairn also said in his statement:

"Phyllis loved her music. She commented to me that she loved her music. Sometimes when I got into the car the music would be up a bit loud. Sometimes when I got into the car to go for a test drive she would turn the music up a bit too loud for me. During the taking of this statement Detective Senior Constable Sims turned the radio on in his office and I gave him a demonstration of how loud the music was. Detective Sims stated that the music was too loud for him."

97 Detective Senior Constable Sims, in company with another police officer, took a similar Toyota Avalon to the Baan Baa level crossing for the purposes of a "re-enactment" in which a similar train also played a part. Detective Senior Constable Sims said in his statement:

"During one of the tests I sat in the test Avalon with the windows wound up and the car radio turned down low and later off. During the re-enactment the train whistle was sounded. The sound of the whistle was dampened by the car's sound insulation. I considered if the sound of the train's whistle may have startled the deceased. During the test, I found the sounding of the whistle was dampened by the car's insulation qualities. Notwithstanding that, you could see the train coming from a long distance."

98 Detective Senior Constable Sims added in a later statement that, "although the train whistle was 'dampened' it was still audible during the re-enactment test described above".

99 The primary judge proceeded on the basis that the windows of the car were closed as it approached the level crossing and regarded it as probable that music was playing loudly within the vehicle. The evidence to which reference has just been made justified that approach.

100 It is to be noted that Detective Senior Constable Sims' re-enactment included listening for the train horn with the car radio "turned down low and later off". There was no reference to testing with music playing at the volume that Detective Senior Constable Sims had described to Mr Nairn as "too loud for him".

The relationship with Mr Nott

101 Mrs Jeffries and Mr Nott met at a party in Baan Baa. Mr Nott gave evidence that they began seeing one another about two weeks later and were together in a happy relationship for about eighteen months. Mr Nott left Mrs Jeffries for another woman some time after Christmas 2003 - probably in January or February 2004.

102 Mrs Allaway gave evidence that Mrs Jeffries was "very hurt" by the break-up but came to accept it.

103 Mr Nott's relationship with the other woman did not last. Mrs Jeffries was aware of this. Mrs Allaway said in a statement that Mrs Jeffries had told her "that if Noddy came back to her she would accept him back" and that "if she had the guts to talk to him she would take him back". Mrs Allaway's assessment was that "if her and Noddy had seen each other they might have gotten back together".

104 Found in Mrs Jeffries' handbag after her death was a partially completed handwritten letter to Mr Nott. In it, she expressed strong feelings of affection for him and a desire to be reconciled, even if only as friends. She said that she wanted to meet to discuss their situation. She said that if he wished to talk "it will have to be this Wed (today) or Friday week nite as I will be in hospital this Friday till Monday 7.5.04".

105 Mrs Jeffries died on Tuesday 4 May 2004. The reference to "7.5.04" is therefore a reference to Friday 7 May 2004. If, as the other evidence shows, Mrs Jeffries was to go to Inverell on Wednesday 5 May for a short stay in hospital, her return to Baan Baa was probably scheduled for Friday 7 May. It may be accepted, therefore, that the times she was proposing for a meeting were Wednesday 28 April 2004 ("this Wed (today)") or the night of Friday 7 May 2004 ("Friday week nite"). This indicates that the letter (or the relevant part of it) was composed on Wednesday 28 April 2004, being "this Wed (today)".

106 The letter was not sent or given to Mr Nott.

107 Mr Nott said in his statement that he spoke with Mrs Jeffries "about one week prior to the collision" (that is, about Tuesday 27 April 2004) and that was the last time he did so. Mr Nott said of that last conversation:

"We spoke about us getting back together."

108 Mr Nott's statement was dated 5 July 2004. He was cross-examined almost seven years later, on 29 April 2011. In the course of cross-examination, he confirmed that he spoke with Mrs Jeffries on one occasion after their relationship ended in about February 2004. The cross-examination about the conversation included the following:

"Q. Did she say that she would like to resume her relationship with you?

A. We were - did talk about it, I think, I'm not sure. Like I said, it's been six years ago."

109 Mr Nott's uncertainty in April 2011 can be explained by the passage of time. There was no uncertainty in his statement signed only two months after the event. He and Mrs Jeffries spoke about a week before her death and discussed the possibility of reconciling. He was by then no longer involved with the other woman.

110 Given that the letter (or part of it) was composed on Wednesday 28 April 2004, that the letter was never delivered and that Mrs Jeffries and Mr Nott discussed the possibility of reconciliation "about a week prior to" her death on 4 May 2004, there is a clearly demonstrated likelihood that the need to send the letter was, in Mrs Jeffries' mind, overtaken by what passed between her and Mr Nott in the conversation that occurred on or about Tuesday 27 April 2004 and which may well have taken place on Wednesday 28 or Thursday 29 April 2004. The possibility of reconciliation had become the subject of conversation between them without the letter written (as to part) on that day having to be sent. If the conversation had occurred a day or two before Mrs Jeffries wrote the relevant part of the letter, there would have been no need for her to propose a meeting.

111 Mr Nott's evidence did not suggest that the possibility of reconciliation, once raised in conversation, had been rejected (or, for that matter, embraced) on either side. Rather, his evidence indicates that the possibility had been acknowledged on both sides in such a way that the issue was a live one. That being so, there was no need for the letter to be sent.

Financial worries?

112 Dr Moroney referred to the fact that Mrs Jeffries was about to lose her part-time housekeeping position at Wee Waa. There was also evidence of her having expressed distaste at the thought of having to seek new employment or become involved with Centrelink.

113 Dr Moroney also referred to Mrs Jeffries' worries that her house needed attention and her car was approaching the point where it would need to be replaced.

114 These financial worries were a factor in Dr Moroney's hypothesis of suicide.

115 The primary judge dealt with these matters in the following passage (at [230]) referring to Dr Moroney's report:

"The evidence, outside of that report, does not establish that the financial position of Mrs Jeffries was one which could be described as difficult. On the contrary, the evidence was that Mrs Jeffries owned her own home and car, both without debt, and that she had monies which were invested. Although there was a suggestion that she may lose her job (and income), this was not something about which she had expressed any concern to her son Rodney, and her friend Mrs Allaway. The evidence does not independently establish any pending financial difficulty, although there seems to have been a discussion between Dr Moroney and Mrs Jeffries about the topic."

116 There is no reason to doubt this assessment.

Family relationships and alleged loss of confidence and self-esteem

117 Dr Moroney referred to Mrs Jeffries' concerns about her daughter's lifestyle, the fact that her ex-husband kept phoning her about his problems and a rift that had developed with her mother-in-law, Rita Jeffries.

118 The first two were ongoing issues in the sense that they had worried Mrs Jeffries for some years. The third was more recent. Its cause was not explained by the evidence.

119 The matter of loss of confidence and self-esteem was referred to in the psychiatric reports, particularly by reference to the evidence of three witnesses: Robert Shields, Caroline King and Dr Moroney.

120 Robert Shields had known Mrs Jeffries since she was a small child. He was on friendly terms with her when she returned to Baan Baa to live after her divorce. They chatted from time to time. Robert Shields related a conversation with Mrs Jeffries which he said occurred about six months before her death, as follows:

Jeffries: "I feel a bit depressed. I would like to sell up and get out of this town people are so nosy and want to know all your business."

Shields: "Phyllis, it's not as bad as that, people are friendly [sic] than you think. Look at my fellows [a reference to his sons] they all pull up and have a yarn to you."

Jeffries: "I know that and you are a wonderful family. You do a lot for your family. I often feel like driving straight under a semi and ending my life."

Shields: "Don't do that, Phyllis. Nearly every time a car goes under a truck, the truck turns over injuring or killing the truck driver, killing an innocent man."

Jeffries: "Well possibly a train would be better."

Shields: "Phyllis, don't do anything like that."

Jeffries: "All right I won't but I feel like doing it sometimes."

121 Robert Shields added that Mrs Jeffries had broken up with a man named Martin "just before" the conversation took place. She and Martin had been living together in her house and when he left he took things of hers with him. Robert Shields was told by Mrs Jeffries that Martin "was abusing her all the time and using filthy language towards her".

122 The fact that Robert Shields placed the conversation a short time after the break-up with Martin means that it cannot have taken place about six months before Mrs Jeffries' death. The relationship with Mr Nott was on foot for some 18 months until January or February 2004. It must follow that the break-up with Martin occurred in the first half of 2002 or earlier. This was confirmed by Mrs Allaway who said in a statement dated 29 May 2004 that Mrs Jeffries "got rid of" Martin "about three to four years ago".

123 By the time of Mrs Jeffries' death, despondency over the parting from Martin (if there was any) or stress stemming from his treatment of her would have been countered by the effects of the relationship with Mr Nott and its consequences. The things Mr Shields reported Mrs Jeffries as having said soon after her break-up with Martin were said under the influence of events that were no longer operative on her emotions and thinking in May 2004.

124 Caroline King was employed by Homecare Services. She attended the home of Mrs Jeffries' mother-in-law (Rita Jeffries) in Narrabri to give housekeeping assistance. She sometimes saw Mrs Jeffries there when the latter was visiting. Ms King provided a statement in which she referred to Mrs Jeffries being present at Rita Jeffries' home on an occasion on which Ms King visited "a couple of months" before Mrs Jeffries' death.

125 On the occasion in question, Mrs Jeffries spoke of just having broken up with her boyfriend (Ms King did not know his name but it was obviously Mr Nott, as distinct from Martin). Mrs Jeffries was upset about this. She thought that the boyfriend and his new and younger girlfriend were driving past laughing at her and that the friends she and the boyfriend had had together as a couple were now his friends only. She felt lonely and isolated. Mrs Jeffries said to Ms King, "I don't know if I can take it much longer." Ms King replied, "You are a strong woman; you will get through it."

126 Ms King's assessment at the time was thus that Mrs Jeffries was resilient.

The evidence of the psychiatrists

127 As I have said, the judge had the benefit of the opinions of three psychiatrists: Dr Phillips, Dr Skinner and Dr Klug. None of these treated Mrs Jeffries. There is no evidence that she ever consulted a psychiatrist except on an occasion some 17 years before her death when she was experiencing marital problems and Dr Moroney referred her to Dr Tann. The three witnesses prepared medico-legal reports based on facts and assumptions with which they were provided for the purpose of doing so.

128 Dr Phillips and Dr Skinner agreed that suicide is a rare event and that suicide and suicidal behaviour are statistically rare, even in populations at risk. The rarity of suicide, even in people known to be at higher risk than the general population, contributes to the impossibility of predicting suicide. The statistical rarity of suicide also makes it impossible to predict on the basis of risk factors either alone or in combination. Knowledge of risk factors will not permit the psychiatrist to predict when or if a specific patient will die by suicide. Dr Klug made reference without disapproval to those factors.

129 The judge referred to a general psychiatric principle stated by Dr Phillips (at [224]):

"... it can be stated that the best predictor of behaviour by any single person is past behaviour by that person. There is no evidence to suggest that Mrs Jeffries made any attempt to harm or to kill herself in the many year period when she had been a patient of Dr Moroney. This striking fact makes it unlikely that she would attempt to kill herself in the future".

130 Dr Skinner in her report of 16 June 2010 responded to this in the following terms:

"In relation to the idea that the best predictor of behaviour is past behaviour, and Mrs Jeffries had not previously attempted suicide, suicides do occur in older age. I note from the Australian Bureau of Statistics that the highest age specific suicide death rate in 2008 for females was observed in the 50 to 54 year age group, with 8.6 deaths per 100,000, with a slightly lower number of suicides by females in the 55 to 59 year age group."

131 Dr Skinner did not, however, take issue with the principal statement in Dr Phillips' report that past behaviour is the best predictor of future conduct.

132 All three witnesses agreed that Mrs Jeffries had a history of depressive illness. They also all agreed that she had a number of intercurrent stressors which may have qualified as risk factors for suicide. The stressors were identified as a history of depressive illness, potential loss of job, probable impending financial difficulties, loss of an important relationship, impending surgery, relative isolation within the broader family system, divorced status and middle age. These factors came, of course, largely from the report of Dr Moroney: see [71] above.

133 The witnesses accepted that Mrs Jeffries had demonstrated substantial psychological resilience over a number of years and was self-sufficient for a long period as well. They accepted that there were mounting stressors and therefore it was possible that her resilience could have given way. They expressed their conclusion in these cautious words: "It is difficult to state what impact these stressors may have had".

134 The psychiatrists agreed that the acute stressors with which they had been briefed, including that Mrs Jeffries was deeply unhappy about the break-up with Mr Nott, contributed to her deteriorating mental state leading up to the collision. The psychiatrists also agreed to answers to two questions of central importance, as follows:

"Q14 - Is it probable that Mrs Jeffries was suffering from chronic depression at the time of her death on 4 May 2004?

We note evidence of depressive symptoms over a number of years which fluctuated in severity, and which were probably present in the lead up to her death.

Q15 - If Mrs Jeffries was suffering from chronic depression at the time of her death on 4 May 2004, did that depression adversely affect her capacity for decision making?

We note that depression is highly likely to affect a person's capacity to make decisions."

135 The primary judge considered it important that, in the last answer, the psychiatrists did not express the view that Mrs Jeffries' capacity for decision-making was in fact adversely affected on 4 May 2004. His Honour was right to emphasise that.

136 The psychiatrists were unable to agree whether the collision was the result of an intentional act of suicide. Each adhered to the opinion expressed in his or her individual report.

137 One assumption of fact which the psychiatrists were asked to make was that the vehicle came to a stop close to the railway line but not on it, then moved slowly forwards when the train was about 200 metres away and then stopped squarely in the train's path and remained in that position for approximately eight seconds before the collision.

138 On these facts, Dr Skinner and Dr Klug were of the view that it was likely, given the behaviour of the motor vehicle (including, of course, its being stationary for eight seconds in the path of the train), that the driver was committing suicide. Dr Phillips, although he was less certain of that fact, thought that it was possible that it may have been a conscious decision of the driver.

139 Each psychiatrist accepted that, if the assumption that the vehicle was stationary for eight seconds in the middle of the track was removed and replaced by an assumption that it came to a stop near the crossing (perhaps at risk of being hit) and then proceeded slowly across the crossing without stopping again, that alternative behaviour of the vehicle was consistent with a possible misjudgment by the driver about the speed necessary to clear the crossing before the train arrived, and not necessarily demonstrative of an intentional suicidal act by the driver.

140 The primary judge summed up this aspect of the matter thus (at [241]):

"In summary, the psychiatrists all agreed that if the vehicle did not stop squarely on the tracks for a discrete identifiable period of time, then the court was confronted with a choice between either a misjudgment or a possible suicide."

141 The psychiatrists were unable to agree whether the evidence about Mrs Jeffries having a fairly normal day in Narrabri immediately before returning to Baan Baa and then driving her car across the level crossing was material in the consideration of whether she committed suicide. Dr Skinner and Dr Klug were of the view that, because Mrs Jeffries was a person who did not disclose much about her psychological state and generally did not want people to know how she was feeling, it was not possible to say whether her conduct on the day in question involved concealing of depressed thoughts yet continuing to perform or behave in a way that was seen to be normal, or whether she was in fact not suffering from any depressed thoughts.

142 Dr Phillips on the other hand interpreted those signs (and, in particular, the fact that Mrs Jeffries was engaging in some planning for the future) as showing that she was not carrying any suicidal intent. His opinion was that this stood strongly against a conclusion of suicide. He said:

"The planning for the future, I understand, is the issue of having put clothes out on the bed in anticipation of going to have a surgical procedure and planning ... to meet with the person later in the day again. So I think there is a degree of positive forward planning there which I find hard to accept goes with the intent to imminently commit suicide.

...

So to my way of thinking, this was an ordinary day in a lady thinking about her future".

143 All psychiatrists agreed that the accounts given by Mrs Allaway and Rodney Jeffries were important to take into account and had regard to them.

144 All psychiatrists agreed that it was important also to take into account the contents of the letter written by Mrs Jeffries to Mr Nott. None expressed an opinion that it was a suicide note.

145 I quote a summary of oral evidence stated by the primary judge (at [250]-[251]:

"In summary, during the oral evidence, Dr Skinner and Dr Klug placed importance on the recency and confluence of the intercurrent stressors. Dr Phillips placed importance on the fact that the depression observed over years was a relatively low level depression, that Mrs Jeffries was a quite resilient and capable personality without any signs of a frank personality disorder and, that in the days leading up to the collision, she was in a relatively happy state, and was engaged in forward looking and forward planning. Nevertheless, for Dr Phillips, it was a finely balanced case.

It is obvious that none of the psychiatrists can be certain about their opinion. Each of them recognised that it was necessary to obtain and analyse all of the facts and, against a background of knowledge and experience, to attempt to reach a conclusion. The fact that the psychiatrists varied in their final opinions, by regarding different factors with different weight, serves to corroborate the lack of any obvious conclusion about Mrs Jeffries' mental state at the time of the collision."

146 Dr Phillips' opinion that Mrs Jeffries did not commit suicide was based on the following:

(a) she had relatively low risk factors for suicide on 4 May 2004;

(b) the clinical notes of Dr Moroney did not indicate that Mrs Jeffries suffered from a significant depression spectrum disorder at any time;

(c) her past behaviour indicated that she was capable of overcoming the various adversities in her life, which she had done over many years. This was the best predictor that she was going to do so in the future;

(d) her preparations, by way of laying her clothes out within her house for her visit to Inverell Hospital was inconsistent with a person about to commit suicide; and

(e) her general behaviour on the day of the accident was quite normal and did not indicate impending suicide.

147 Dr Phillips took into account the comments which Mrs Jeffries had made to Robert Shields. Dr Phillips thought that the letter written to Mr Nott was an attempt at reconciliation rather than anything else. He placed great emphasis on the forward planning, including arrangements for Mrs Allaway to attend at the Inverell Hospital with Mrs Jeffries, and the discussions which Mrs Jeffries had had with her son on the afternoon of the collision. Finally, Dr Phillips pointed to the resilience over time of Mrs Jeffries to be able to cope psychologically without previously engaging in a self-harming or suicidal manner. He expressed his conclusion in this way:

"At the conclusion of this complex exercise, I am no closer to believing that Mrs Jeffries made a conscious decision to end her life by having her car run down by the CountryLink train on 4 May 2004. ... More probably, Mrs Jeffries was a strong and relatively resourceful person and was continuing (successfully) to accommodate to a recurrent adjustment disorder, and that the accident at the railway crossing had not been consciously planned in any manner".

148 Dr Skinner expressed her conclusion in this way:

"In the light of Mrs Jeffries' medical history, information from witnesses, and evidence of psychosocial stressors present in her life, it is highly probable that her death was the result of an intentional act."

149 That conclusion was based on the following principal factors:

(a) Mrs Jeffries suffered from a depressive disorder which became more severe in the months prior to her death which would adversely affect her capacity for decision-making;

(b) the importance of the intercurrent stressors;

(c) remarks made by Mrs Jeffries to other people which indicated that she had lost confidence and self-esteem and feared that others might ridicule her; and

(d) the opinion of Dr Moroney that he had been worried for at least a year before the accident that she might commit suicide due to her deepening depression and onset of paranoia about what was written in the medical records.

150 Dr Klug expressed his opinion in the following terms:

"It is clear that Mrs Jeffries qualified for a number of high risk factors for suicide. She was fifty-five years of age, divorced, had undergone a number of recent relationship failures and was clearly very distressed about the breakdown of the relationship with Donald Nott. She experienced other interpersonal relationship conflicts at the time and, in particular, felt alienated from her former mother-in-law and sister-in-law. She suffered from various chronic physical illnesses. She expressed suicidal thoughts and, to one person, suicidal intent, in the period leading to her death. She was experiencing financial stress and possibly prospective unemployment. She was facing a poor level of personal achievement in the later years of her life and felt stigmatised by her ongoing depressive problems ...

....

The circumstances of her death are strongly suggestive of suicide. This is seriously considered in the OTSI Report which nevertheless concludes that it is uncertain whether the act was unintended or intended.

The fact that her death occurred in full view of Donald Nott at the nearby Baan Baa Railway Hotel, which has a full view of the crossing, cannot be dismissed as a motivating factor towards suicide.

The dissembling of her daughter, Tanya Jeffries about the letter to Donald Nott indicates that her daughter's subsequent refusal to allow a search of her mother's house for further documentation is particularly relevant".

151 Dr Klug expressed his disagreement with Dr Phillips' view that Mrs Jeffries did not commit suicide. Dr Klug's principal bases included, the judge found, "material which had been provided to him, which was not ultimately proved separately in evidence", much of which the judge regarded as speculative. His Honour said (at [266]):

"By way of example, Dr Klug quotes and seems to rely upon, conclusions of others who are perhaps not as well qualified as some of the other witnesses with respect to the state of mind of Mrs Jeffries. He notes that Detective Sims describes the letter to Mr Nott as having been written by Mrs Jeffries '... in a desperate state of mind over her relationship with Nott ...'."

152 The judge observed (also at [266]):

"This is not a conclusion with which I agree. The particular qualifications of Detective Sims to draw that conclusion are not apparent in the evidence, nor are the bases for that opinion exposed."

153 The judge noted that Dr Klug also relied on a hearsay version of what Mr Houlihan said about the movement of the car and speculation of Ms Starr as to who had been driving the car about which she heard in or from a news report. Further and significant reservations about Dr Klug's report were expressed by his Honour thus (at [269]-[272]:

"More importantly, there are two particular factors which Dr Klug takes into account, and when expressing his conclusion, places them as important matters. The first of these is that Mrs Jeffries' death occurred in full view of Mr Nott who was in the nearby Baan Baa Railway Hotel. Dr Klug says that this cannot be dismissed as a motivating factor towards suicide. There is no evidence that Mr Nott visited the Railway Hotel at identified and regular times on each day or on any particular day. There is no evidence that Mrs Jeffries knew that on the day of the collision Mr Nott was in the hotel, or was likely to be in the hotel. There is simply no evidence to connect the presence of Mr Nott in the Railway Hotel, with Mrs Jeffries' knowledge of that fact, nor with the collision.

In my opinion, this factor relied upon by Dr Klug, is entirely speculative. I note that neither of the other two expert psychiatrists took this factor into account. Dr Phillips described it as speculation. I agree. This is not a basis to which regard can be had in considering Mrs Jeffries' conduct at the time of the collision.

Dr Klug also takes into account the conduct of Mrs Jeffries' daughter, Tanya, after her mother's death. He says that her refusal to allow a search of her mother's house for further documentation 'is particularly relevant'. There is an unstated premise in this comment which is that Ms Tanya Jeffries had been in her mother's house, had found one or more documents which she determined did not paint her mother in a positive light, and that accordingly, she had concealed those documents or else prevented the discovery of them.

There is also the possibility of a further unstated premise, namely, that there were other contents in the house, or the state of the house itself, which similarly may have indicated that Mrs Jeffries had committed suicide, which fact her daughter, Mr [sic] Tanya Jeffries, wished to conceal."

154 The judge did not accept Dr Klug's opinion evidence. His reasons were cogent and his decision was correct.

Assessment of the challenges to fact-finding

155 It is now possible to return to the contentions summarised at [33] above.

156 The first such contention ((a)(i) and (ii) at [33] above) is that the judge failed to deal satisfactorily with evidence that Mrs Jeffries' hopes of reconciliation with Mr Nott had not been realised and that the letter she had been composing in the days before her death demonstrated her anxiety to resume the relationship and her disturbed state. These matters are covered at [101] to [111] above. In short, Mr Nott gave evidence that there had been talk of reconciliation about a week before Mrs Jeffries' death. On his account, the possibility was open at the relevant time. The letter had been composed before the discussion of possible reconciliation took place and the sentiments in it are to be judged in the light of that subsequent and significant event.

157 The second contention ((a)(iii) at [33] above) refers to Mrs Jeffries' "unusual conversation" with Ms Starr shortly before the collision. The main point to be made about that is that the conversation was not as Dr Moroney portrayed it (with Mrs Jeffries "in a highly agitated state"). All that Ms Starr said was that Mrs Jeffries, who "seemed bright", "lingered around longer than usual and it seemed to me that she wanted someone to talk to". The possible purposes of the visit to Dr Moroney's surgery in the course of which Mrs Jeffries spoke with Ms Starr are canvassed at [85] and [86] above. She went for one of three reasons: to collect blood test results (assuming that she had not already done so earlier in the day), to chat with her friend Ms Connole (not knowing that she was away on leave) or in the hope of waylaying Dr Moroney before he went on duty (as was her practice). There is, in addition, a demonstrated likelihood that she was, in any event, filling in time waiting for Mrs Allaway to finish at the other medical premises. The visit was, in context, not odd or unexplained; nor can the conversation be said to have been "unusual".

158 The third contention ((a)(iv) at [33] above) is that the judge failed to deal satisfactorily with the fact that Mrs Jeffries, having returned to Baan Baa and set out to drive to her parents' house, turned back before reaching her destination and returned to the level crossing. There was no evidence that would have enabled the judge to form any firm opinion as to why Mrs Jeffries turned back. It can, however, be said that she, like everyone else in Baan Baa, knew that the train passed through every day shortly after 5pm. Had she formed an intention of placing her car in its path, there was no need for her to drive across the railway line in the direction of her parents' house, travel an appreciable distance towards that destination and then turn back. It would have been easier simply to drive from her home (or Mrs Allaway's house) direct to the railway. In that event, the driver's side of the car would have been away from the oncoming train; but that could have been remedied by crossing the line, turning around immediately and waiting for the train to approach. The fact that she proceeded some distance towards the parents' house before turning back suggests that she was motivated by something other than a desire to be well-positioned to place the car on the railway line with the driver's side towards the approaching train.

159 Fourth, there is a set of contentions concerning the technical evidence (see (b)(i) to (v) at [33] above). That is, I think, sufficiently dealt with at [35] to [66] above. In summary, the technical evidence supported a finding that the car did not stop again once it advanced on to the railway line and that it was not stationary in the path of the train for eight seconds or any other period. Rather, the car continued moving forward at a very slow speed, having initially come to a halt. This is consistent with inattention or distraction. There was evidence about Mrs Jeffries' habit of driving with the car windows up listening to loud music: see [95] to [100] above.

160 As for the contention in (c)(i) and (ii) at [33] above, it is sufficient to refer again to the analysis at [35] to [66] above.

161 In relation to (d) and (e) at [33] above, reference need only be made to the fact that the windows of the car were closed at the relevant time and to the evidence at [95] to [100] above concerning Mrs Jeffries' practice of playing music loudly while driving.

162 At a more general level, it must be said that the evidence simply did not bear out the hypothesis of Dr Moroney who was "90 to 95 per cent certain" that Mrs Jeffries committed suicide. She had spent an apparently happy time with Mrs Allaway during the day. She had gone to see her son to tell him of the impending surgery. She did not express any concern or worry to him. She said to Mrs Allaway that she was "not worried even slightly" about the surgery and would be "able to function again properly". She had laid out her clothes to take to Inverell the next day. Mrs Allaway was to accompany her and they had agreed to speak that night about final travel plans. It is true that Mrs Jeffries suffered from depression and had done so for several years. It is also true that she was irritated by her ex-husband's complaints and worried about her daughter. But these were not new concerns. She had coped with them adequately for an appreciable period. She had spoken with Mr Nott about possible reconciliation. There was no suggestion that he had ruled out that possibility. She may have been, to an extent, upset by an apparent rift with her mother-in-law and anxious about the ending of her employment. The suggestion that she had financial problems was correctly found by the judge to be unsubstantiated. As Mrs Allaway made clear, she was devoted to her grandchildren.

163 Finally, I refer to the evidence of the psychiatrists. Dr Phillips' opinion was that Mrs Jeffries did not commit suicide. Dr Klug's opinion that she did commit suicide was rejected by the judge for compelling and cogent reasons already noted (see [154] above). Dr Skinner's opinion was that Mrs Jeffries had committed suicide. But Dr Skinner, like the other experts, worked on the basis of the existence of a number of intercurrent stressors, being a history of depressive illness, potential loss of job, probable impending financial difficulties, loss of an important relationship, impending surgery, relative isolation within the broader family system, divorced status and middle age. For reasons already stated, some of these were not at all severe. Mrs Jeffries' divorced status did not seem to worry or inhibit her: she obviously had no wish to be reconciled with her husband and had enjoyed other relationships after they parted. To the extent that reliance was placed on Dr Moroney's assessment in judging the significance of the stressors, that reliance was unsafe. The factors on which Dr Phillips placed emphasis (see [146] above) are, to my mind, compelling.

Conclusion on the central issue

164 My conclusion, after a review of the facts that I consider to be established by the evidence, is that the judge was correct to decide that, on the balance of probabilities, Mrs Jeffries did not take her own life and that the collision was, in terms of the relevant policy of insurance, "an accident".

The appeal in relation to costs

165 The primary judge's orders in relation to costs (made on 17 August 2012) were as follows:

"(1) The defendant/cross claimant to pay the plaintiffs'/cross defendants' costs of the proceedings (including the cross claims) on an ordinary basis up to and including 31 March 2011.

(2) The defendant/cross claimant to pay the plaintiffs'/cross defendants' costs of the proceedings (including the cross claims) on an indemnity basis from 1 April 2011.

(3) Order the defendant/cross claimant to pay to the plaintiffs/cross defendants interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules, on the allowed percentage of each amount of costs and disbursements actually paid by the plaintiffs/cross defendants, from the date of payment by the plaintiffs/cross defendants of each such amount of costs and disbursements until the first to occur of:

(a) such time as the defendant/cross claimant pays the costs due to the plaintiffs/cross defendants under any order made in these proceedings, or

(b) the assessment of the costs to which the plaintiffs/cross defendants are entitled pursuant to the costs orders in their favour.

In this order X = the total amount of costs and disbursements which the plaintiffs/cross defendants have paid or are liable to pay to their legal advisers in connection with these proceedings, Y = the total amount of costs and disbursements allowed on assessment to the plaintiffs/cross defendants in connection with these proceedings. The allowed percentage equals ((y/x) x 100)%.

(4) Grant liberty to the plaintiff's cross defendants to apply upon three days notice to the other parties for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order (3)."

166 Central to his Honour's reasoning on costs was a conclusion that an offer of compromise served by the respondents on 31 March 2011 met the requirements in rule 20.26 of the Uniform Civil Procedure Rules 2005 as it stood at the relevant time; but if that was not correct, that the offer took effect as a Calderbank offer (Calderbank v Calderbank [1975] 3 WLR 586). The appellant, by its grounds of appeal 24, 25 and 26, challenged that conclusion in both its branches. The appellant maintains that the primary judge should not have awarded costs on the indemnity basis.

167 At the time this appeal was heard, the decision of this Court in Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 was reserved. Judgment was given on 25 June 2013. The Court directed the filing of written submissions on the costs issue in this appeal following publication of the Whitney reasons.

168 The respondents now accept that, in the light of the Whitney reasons, the appellant's challenge to the indeminity costs order must be upheld.

Disposition

169 I propose orders as follows:

1. Appeal allowed in part.

2. Vary Order (1) made in the Common Law Division on 17 August 2012 with respect to costs by omitting "up to and including 31 March 2011".

3. Set aside Order (2) made in the Common Law Division on 17 August 2012 with respect to costs.

4. Appeal otherwise dismissed.

5. That the respondents pay the appellant's costs of the appeal in so far as they relate to grounds of appeal 24, 25 and 26.

6. That the appellant pay the respondents' costs of the appeal except in so far as they relate to grounds of appeal 24, 25 and 26.

170 WARD JA: I agree with Barrett JA.

171 GLEESON JA: I agree with Barrett JA.

**********

Decision last updated: 12 November 2013