Casey v Transport Accident Commission [2015] VSCA 38

1 I have had the benefit of reading, in draft form, the judgment of Osborn JA. I agree, for the reasons his Honour gives, that the appeal should be dismissed.

2 Mr Casey, a construction worker, has failed at first instance in a claim for damages for personal injuries allegedly suffered when he was struck by an unidentified vehicle as he was crossing the road. The proceeding was heard before Rush J and a jury of six over eight days in August 2014. At the end of the trial the jury returned a verdict for the respondent by answering 'no' to the first question asked of it:

Was there any negligence on the part of the driver of the unidentified vehicle which was a cause of the plaintiff suffering injury, loss and damage?

3 Judgment was entered in accordance with the jury's verdict and Mr Casey now appeals on the ground that the verdict was against the evidence or the weight of the evidence.[1]

4 The critical question is whether the jury's verdict was reasonably open to it.

The Court may order a new trial where the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.[2]

5 The Court must proceed on the basis that the jury took the view of the evidence most favourable to the respondent.[3] It is of course not known what view of the facts individual jurors took.

6 In turn, because the appellant bore the onus of proof, he must now demonstrate that the jury was bound to reach a verdict in his favour. As Brennan J put it in Calin:

In this case ... it would be impossible to hold that a verdict for the defendant was unreasonable unless, on the whole of the evidence, the plaintiff is entitled to a verdict in her favour. But, where the burden of proof is on a party who fails before a jury, the verdict cannot be set aside and a contrary verdict entered unless the jury could do nothing else but find in accordance with that party's contention. It is not sufficient to show that that party has made out a strong case. Here, the jury might reasonably have refused to be satisfied about one or more of the issues on which the plaintiff bore the onus of proof.[4]

7 This is a difficult task on appeal where issues of credibility and reliability affected the discharge of the onus of proof.[5]

8 Consistently with these principles, the authorities make clear that the Court should not order a new trial unless the appellant has made out a 'clear case' or an 'exceptionally strong case' and the occasions for such an order will be extremely rare.[6]

9 The appellant gave evidence that on 28 February 2009 in company with two of his workmates, Mick Cassa and Luke Finnigan, he left his workplace and travelled by car to Auburn Village intending to visit a café. After parking on the eastern side of Auburn Road, south of the intersection with Riversdale Road, the three men walked up to the south-east corner of that intersection and crossed over to the south-west corner. After 'pushing the button' and waiting for the lights to change in his favour, the appellant commenced to walk towards the north-west corner.

... the lights changed, the green man came on and I was on the right and Luke and Mick were on my left and I said, 'come on, let's go fellas', took maybe three steps out and bang got hit by a car ...

...

I just felt like I got hit by a truck or something. It was like - I don't know, I remember seeing sky and a lot of confusion.

10 The appellant said further that the car was a big green car and he was told by witnesses that it was a green Tarago. The case advanced on his behalf was that the car turned left out of Auburn Road and struck the appellant.

11 In the course of cross-examination the appellant agreed he did not see the car before it hit him. The car 'came out of nowhere'.

12 In re-examination he confirmed that the pedestrian lights were green and said that he was between lines marking the pedestrian crossing when he was hit.

13 No evidence was called from Mr Cassa or Mr Finnigan and the appellant's case as to the manner in which he was injured thus depended entirely on acceptance of the fundamental elements of his account.

14 The appellant said that after the accident he was taken back to his worksite by his workmates, hoping to obtain first aid. He then drove to the Camberwell Police Station where he spoke to a police officer. After this, he was taken by ambulance to the Alfred Hospital. He had pain in his head and neck and numbness and tingling down and into his hands and legs.

15 The appellant was fitted with a cervical collar at the hospital and following his discharge he was told to lie flat for at least a month and to wear a collar for eight months. His injury was substantially to the neck. He was treated with physiotherapy and hydrotherapy. He attempted to return to work in June/July 2009, undertaking training in occupational health and safety and other skills, but was not able to return to work.

16 In January 2010, October 2010 and May 2011 the appellant was involved in three more transport accidents. He suffered from chronic pain and depression and was treated at Maroondah Psychiatric Hospital at one point. He underwent surgery to his neck in November 2012. He said that since the transport accident in issue he had performed in one advertisement for a German company and tried to do voiceover work on a radio advertisement with the same company.

17 In final address, senior counsel for the respondent commenced by submitting that the jury should be very cautious and should scrutinise the appellant's evidence very carefully. It was further submitted that the jury should not accept the appellant's evidence about the circumstances of the accident, including his evidence that the pedestrian light was green because he 'lacks any credibility and is entirely unreliable'. Further, the appellant's evidence that the car 'came out of nowhere' raised a real question as to what he did and did not see.

18 Senior counsel concluded her address to the jury by submitting that the jury could not be satisfied as to the circumstances of the collision and that the jury should answer the first question 'no'.

19 In due course, the trial judge directed the jury in conventional terms that the plaintiff bore the onus of proof.

The plaintiff brings the claim and as the claimant he must prove the case that he alleges, that is, the plaintiff carries what the law calls the burden of proof. The plaintiff must prove what is called the ingredients of his claim. Here, Mr Casey alleges that on 29 February 2009 at the intersection of Riversdale Road and Auburn Road in Hawthorn, as he was crossing with a green light in the lines for pedestrians, he was struck by a vehicle that failed to stop.

He was injured, he says, as a consequence of that vehicle failing to give way to him, a pedestrian, at the intersection. So the plaintiff must prove that the driver of the unidentified vehicle was negligent, that the negligence was a cause of the injuries that he comes to this court to claim damages for. He must prove the nature and extent of those injuries. The burden that the plaintiff carries has to satisfy you that it is more probable than not that the allegations which he makes are true.

20 Further, in summarising the defence case, the judge reminded the jury that it was squarely put that the jury could not be satisfied at all as to how the incident in issue occurred.

21 Whilst it is plain enough, as his counsel submits, that if the appellant walked onto the roadway in the circumstances he described, the weight of the evidence supported the conclusion that the driver of the unidentified vehicle was negligent, the critical issue for the jury was simply whether they accepted this aspect of the appellant's evidence. If they did not, they were entitled to answer question 1 'no'.

22 The appellant now faces four fundamental difficulties:

(a) it was open to reject him generally as a witness of truth and reliability;

(b) he had given varying accounts of how the accident happened;

(c) the inference was open that the evidence of Mr Cassa and Mr Finnigan would not have helped the appellant's case; and

(d) the jury enjoyed the advantage of seeing and hearing the appellant give evidence.

23 The appellant's credit was attacked on the following principal bases:

(a) in April 2005, the appellant pleaded guilty to four counts of fraudulently obtaining benefits from the Victorian Workcover Authority;

_(b) the video surveillance footage tendered at the trial showed the appellant demonstrating a full range of neck movements while gardening, shopping and performing manual labour activities, in sharp contrast with his evidence that - _

(i) his neck movements were severely restricted in all directions; and

(ii) he did not perform any outdoor work at all, including gardening, and he was unable to do his own shopping;

(c) the appellant was not forthcoming about the true extent of his media work as an actor after the transport accident in either his sworn answers to interrogatories or his evidence in chief, and conceded only under cross-examination that he had performed in television advertisements in August 2009, August 2011 and July 2012;

(d) the appellant made false declarations in certificates of capacity (forming the basis of claims for weekly compensation payments) that he had not engaged in any form of employment during periods in which he had actually been engaged in media work;

(e) when he was a self-employed builder, the appellant failed to declare for taxation purposes income derived from cash payments, with the result that that he had an outstanding tax liability of about $130,000 at the time of the trial;

(f) the appellant had declared that the particulars set out in a statement of affairs of a bankrupt dated 20 March 2008 were correct, but conceded at the trial that he had given false answers to two questions relating to his building business;

_(g) the appellant's initial denial that there were times during his period of employment with Direct Skills (his employer after September 2007) when he was unable to work on site was inconsistent with - _

(i) the fact that he was certified unfit for work duties from 13 November 2007 until 25 December 2007 because of a crush injury to his hand;

(ii) the fact that, in February 2008, he was hospitalised for two weeks in relation to a psychiatric condition; and

(iii) the fact that he was certified unfit for work duties from 31 July 2008 until 30 August 2008 following a mastectomy; and

(h) the appellant's evidence that, before the transport accident, he had used marijuana on only two occasions some 25 years ago, was inconsistent with Dr Singh's reference to a history of 'marijuana abuse' in February 2008.

24 These matters raised a series of genuine issues as to the appellant's general truthfulness and reliability. They did not, on the view most favourable to the respondent, simply demonstrate a recurrent propensity to untruthfulness but also:

(a) willingness to make false claims for compensation for injuries;

(b) recurrent financial dishonesty constituted by the making of untruthful statements for the purpose of obtaining financial advantage; and

(c) exaggeration of his evidence in this case in respect of a series of matters affecting quantum demonstrating that he was not entirely truthful with the jury.

25 The jury had to weigh the combination of these matters up in conjunction with an evaluation of the manner and course in which the appellant's evidence was presented in the context of the trial as a whole. That evidence included a series of answers which might fairly be characterised as somewhat evasive. These included responses to matters demonstrated by video footage which elaborated the theme 'if I load up with pills and smoke dope, yes I can struggle through.'

26 The appellant's evidence also included substantial embroidery of his case on the third day of his evidence by the mention for the first time of a bystander who told him at the scene of the incident that the driver of the car involved was a woman using a mobile phone. This was challenged as a recent invention.

27 In the course of submission on the appeal, counsel for the appellant accepted that he was the subject of a successful credit attack 'on a number of issues'.

28 The appellant had previously given accounts of the transport accident that were inconsistent with aspects of his evidence and with the way his case was put, namely that the vehicle struck him after making a left turn. Under cross-examination, the appellant accepted that he had -

(a) told doctors Mr Davison and Mr Nye that he was struck by a car that had run a red light;

(b) told other doctors that he had no recollection of the accident;

(c) completed a worker's injury claim form in which he stated that the car 'ran the red light while [he] was crossing the road'; and

(d) completed an Incolink claim form in which he stated, among other things, that '[t]he car ran the red light' and 'I don't remember anything about being hit'.[7]

29 These statements did not fit comfortably with the appellant's case that the unidentified car turned left and struck him. They might or might not be regarded as materially inconsistent with the credibility of his case.

30 In addition, the respondent tendered the appellant's records from the Alfred Hospital which noted his history as follows:

Car vs Ped. - Car turns left, his right side hit side of car. Not knocked off feet. Walked to work and then drove to Police Station.

Right shoulder, elbow & thigh pain.

31 Whilst consistent with the appellant's case in respect of the car's movement, this note was otherwise capable of being regarded as unhelpful in respect of the detail of the appellant's case.

32 The trial judge directed the jury as to the relevant principles as follows:

Members of the jury, it is for you to consider whether there was a person or persons who you think could have provided relevant evidence about a particular issue who was not called by one or other of the parties who you might have expected to be called. If you think there was such a person, this question arises: what does the law permit you, the jury, to make of the failure to call that person. I can direct you as follows: unexplained failure by a party to call a particular witness does not fill any gap in the evidence called by the other party. You are not permitted to speculate what the witness might have said if called, but you are permitted - not obliged, you are permitted to infer that the evidence of the particular person would not have helped the case of the party who did not call the witness.

If that is what you inferred, you would be entitled to more readily accept evidence which has been given about a particular matter concerning which the person not called could have spoken. You would also be entitled to more readily draw an inference founded upon evidence which was given about that particular matter. These are entirely matters for you to decide, whether the failure of one or other of the parties to call a particular person should lead to you drawing an inference that the person's evidence would not have assisted that party, and if you drew such an inference, whether or not to use it in one or other of the permitted ways.

33 The judge further directed the jury with respect to the unexplained absence of evidence from Mr Cassa and Mr Finnigan that it was open to the jury to conclude that the evidence of the two workmates present with the appellant at the time of the incident would not have assisted him.

34 The inference fell to be evaluated in circumstances where the appellant said in evidence, amongst other things:

35 The jury had the advantage of seeing and hearing the appellant give evidence over a series of days and of assessing his responses to cross-examination in the context of the trial as it developed.[8]

36 Taken together, the considerations I have summarised above entitled the jury to take the view that they were not sufficiently persuaded of the truth and reliability of the appellant's evidence to give a positive answer to question one. It is, of course, entirely possible that individual jurors were not so persuaded for different reasons or a different combination of reasons.[9]

37 The appellant submits that the respondent did not put to him in cross-examination circumstances which did not involve negligence on the part of the unidentified driver. This assumes that the respondent was in a position to positively put an alternative version of the happening of the accident. It cannot be assumed that the respondent was in such a position. The respondent was entitled to rely on the onus of proof.

38 Moreover, counsel for the respondent did expressly put to the appellant in cross-examination that his evidence of the circumstances of the accident was a reconstruction either because he had no memory of it and relied on what Mr Finnigan had told him or that he had simply made it up to fit the context.

39 It was not necessary for counsel to formally put to the appellant that every individual element of his account was untrue. The relevant principles were elaborated by Mahoney JA in Fabre v Arenales & Anor:

It is, of course, not a principle of law that, if not examined upon it, a witness's evidence must be taken to be true. Evidence may be so obviously inaccurate or untrue that it does not warrant notice in cross-examination. Cross-examination upon some part may be sufficient to deal with the rest. Or it may otherwise be clear that the parties are at issue in relation to the relevant matters. On the other hand, failure to cross-examine may lead a party and her advisers to believe that evidence is accepted and to call nothing further on the matter. Or otherwise it may be unfair to allow evidence to stand without cross-examination if subsequently it is to be submitted that some inference is to be drawn from it which, if put, could have been dealt with. The decision in Browne v Dunn[10] is in the end based on unfairness of this kind.

In the present case, the Court does not know whether, from Mr Arenales or otherwise, the defendants' counsel had instructions to put specific matters to the plaintiff in relation to what was said in the car. The general attack upon the plaintiff's credit in cross-examination was plain and obvious. There was no suggestion that, by failure to cross-examine, the conduct of the plaintiff's case was affected. This was not a case of inference which, if put, the plaintiff might have explained. The defendants' case was simply that the plaintiff did not say and do what, in evidence, she said.[11]

40 This is likewise a case in which the general attack upon the appellant's credit was plain and obvious. Further, there is no suggestion that a failure to cross-examine on specific matters affected the conduct of the appellant's case. In addition, no complaint was made with respect to the judge's summary to the jury of the basis on which the parties joined issue. There is no suggestion that this somehow led to a miscarriage of justice. The question of whether the appellant's account of the manner in which the accident occurred should be accepted was identified squarely as the central issue in the case. The defence position was that the jury could not be satisfied at all as to how the incident in issue occurred.

Documents put in evidence in the course of cross-examination

41 Counsel for the appellant further submitted that the case for the appellant did not rest on his own evidence alone but also upon three documents which were tendered by the respondent in the course of cross-examination; being a police incident report, an ambulance report and the hospital record to which I have already referred.

42 In my view, none of these documents advance the matter further. Insofar as they deal with the circumstances of the traffic accident they were founded upon statements of the appellant. As such, insofar as they supported his case, they were self-serving and capable of rejection for the same reasons as his oral evidence.

43 Secondly, they were, in any event, equivocal in many respects. Thus, the police report describes a hit and run collision in which the pedestrian was initially hit by the front of a Toyota Tarago 'going straight ahead'. It further states with respect to the driver of the vehicle in relation to the heading 'At Fault/Reason', the response 'Not known'.

44 Thirdly, whilst it cannot be denied that aspects of the records might be regarded as corroborating aspects of the appellant's case, they were not bound to be accepted as proving that case. They were summary in content and thus none in terms stated that the appellant stepped onto the roadway with a green pedestrian signal. Further, and more fundamentally, their probative weight was diminished by the self-serving and inconsistent character of their content. The jury were not bound to selectively accept those aspects of the documents which tended to support the appellant's case and disregard those which did not.

45 The jury were correctly directed as to the onus of proof. It was for them to decide whether they were satisfied by the appellant's evidence that the incident in question was caused by the negligence of the driver of an unidentified vehicle.

[1] A further ground of appeal was abandoned.

[2] Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ) ('Calin').

[3] Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 501 (Dixon J); Zoukra v Lowenstern [1958] VicRp 94; [1958] VR 594, 595 (Herring CJ, O'Bryan and Dean JJ); Australian Iron & Steel Ltd v Greenwood [1962] HCA 42; (1962) 107 CLR 308, 311 (Taylor, Menzies and Owen JJ); Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 327 [29]-[30] (McHugh J), 335-6 [64] (Gummow and Callinan JJ); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 141 [71] (McHugh J).

[4] Calin [1991] HCA 23; (1991) 173 CLR 33, 46-7 (Brennan J) (citations omitted). See further, the judgment of Mason CJ, Deane, Toohey and McHugh JJ at 41-2.

[5] See, eg, Munday v Court [2013] VSCA 279, [25] (Priest JA); Murphy v Harney [2003] VSCA 21, [11] (Winneke P).

[6] Australian Iron & Steel Ltd v Greenwood [1962] HCA 42; (1962) 107 CLR 308, 311 (Taylor, Menzies and Owen JJ); Calin [1991] HCA 23; (1991) 173 CLR 33, 42 (Mason CJ, Deane, Toohey and McHugh JJ); John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77, 129 [184] (Callinan J).

[8] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-6 [23] (Gleeson CJ, Gummow and Kirby JJ). The authorities are further discussed by Whelan JA in Transport Accident Commission v Cuthbertson [2013] VSCA 29.

[9] Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517.

[11] (1992) 27 NSWLR 437, 451 (citation in original); see also, Thomas v Van Den Yssel (1976) 14 SASR 205, 207 (Bray CJ); Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 236 (Mahoney JA); Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 587-8 (Samuels JA).