Widera v Reid [2002] ACTCA 3

As the Master observed, the evidence of the appellant and respondent had provided two dramatically different versions of the incident in question.

The appellant said that on the evening in question he had attended the home of Ms Towne, with whom he had had a de facto relationship, and that they had put the children to bed, enjoyed a late supper during which he consumed three small glasses of wine and had a “perfectly friendly, happy evening”. At about 10.00 or 10.30 pm he heard the sound of a vehicle being driven onto an area of the front lawn where he and Ms Towne had earlier been gardening. He responded by turning on the light and opening the front door to see who it was. He saw a Volkswagon Kombi utility (“VW”) do “a big wheelie across the lawn”. He then walked to the kerb in an attempt to read the number plate. He described the accident in evocative terms: “he took off, done a wheelie across the road and then he’s gone for me and then I’ve ducked me head and he’s hit me head and I’ve flown in the air . . .”. In cross-examination he explained that when he stopped running and stood by the kerb, the VW was then about 10 to 20 feet away and moving towards him across onto the incorrect side of the roadway. He was unable to estimate its speed. He claimed that he had not had time to move out of the way and also said that he had stood there to check the number plate as the vehicle went past. The Master said that he found this evidence difficult to accept.

The appellant said that after the incident he went back inside the house and consumed about six large glasses of wine for his nerves. He said that he had not known who owned the vehicle or the identity of the driver. In cross-examination he agreed that after this incident Ms Towne had left the premises and spent the night at the respondent’s home. However, he was adamant that he had never met the respondent before and did not know him.

The respondent’s version was quite different. He said that Ms Towne had introduced him to the appellant some months before the incident. The appellant was initially friendly but became frosty and surly due to the developing relationship between the respondent and Ms Towne. He claimed that in about August or September 1997 the appellant told him that he did not want him to come to Ms Towne’s premises or have anything to do with her and threatened to assault him if he did.

The respondent said that on the night of the incident he went to Ms Towne’s home in response to her invitation. He drove onto the lawn, which he said was where cars usually parked, alighted from the vehicle and knocked on the door. He said that the appellant began to shout obscenities at him and came towards the door. The respondent was frightened that he was going to be assaulted and ran to his car. He conceded that he drove away quickly, spinning his wheels on the grass, but maintained that he turned into the correct lane of the road. He said that the appellant, who had bloodshot eyes and was unsteady, ran towards the car and made a movement as though he was going to kick it. He then heard an impact. The vehicle had been travelling at about 30 to 35 kilometres per hour at the time. He said that he had continued to drive home as he had been in fear for his safety.

The Master observed that Ms Towne did not give evidence but took the view that an inference could be drawn “both ways” from her failure to do so.

An ambulance report relating to the subsequent attendance at the appellant’s home contained notes “PT [patient] hit by car after domestic” and “PT [patient] smells strongly of alcohol”. The Master observed that it would seem odd for an incident in which an unknown driver had allegedly collided with a pedestrian to have been described as a “domestic”.

The appellant was conveyed to Calvary Hospital and the hospital notes included the history, “altercation with car driver. Car side swiped him on L side”. The Master noted that there had been no cross-examination concerning this passage but that the history could only have come from the appellant and that the reference to an altercation was more consistent with the respondent’s version of events. The history also included the statement “hit by a VW semi truck – speed 40 – 50 kph (driver known to him)”. The Master again observed that this passage had not been referred to in cross-examination but said that it was consistent with the respondent’s version of events.

The Master found that neither the appellant nor the respondent were witnesses whose accounts he could fully accept. He said that the evidence had been somewhat unsatisfactory as both the appellant and respondent could have called witnesses to support their versions, particularly as to whether the respondent was known to the appellant at the time of the incident. However, on the evidence before him, the Master preferred the version that had been recounted by the respondent. On that version, the appellant had recognised the respondent as a person having a relationship with Ms Towne and had run out of the house abusing him. The respondent had got into his car and drove away but the appellant had run onto the road to kick the side of his vehicle. The Master was not satisfied that there had been any breach of a duty of care by the respondent who had apparently been in genuine fear and had been entitled to seek to get away from the appellant. The Master concluded at [21]: To the extent that he was thus less than vigilent [sic] in failing to avoid Mr Widera, it seems to me that Cusack v Stayt [2000] NSW CA 244 (2000) 31 MVR 517 is authority for excusing Mr Reid from any negligence in striking Mr Widera while seeking to get away from him. Abdallah v Newton (1998) 28 MVR 364 and Harper v Blake [1999] NSW CCA 224 (1999) 29 MVR 389 also provide authority for the proposition that Mr Reid’s conduct was reasonable, and Mr Widera cannot complain at an injury he has sustained by running out onto the road in order to attempt to kick Mr Reid’s motor vehicle.

Whilst finding for the respondent, the Master indicated that if he had found that there had been a breach of duty of care on the part of the respondent he would have assessed damages in the sum of $44,592.38.

Mr Everson, who appeared for the appellant, challenged the Master’s decision to find for the respondent on a number of bases.

First, Mr Everson argued that in preferring the version of events given by the respondent, the Master had failed to use or palpably misused his advantage in seeing and hearing the witnesses. In particular, he argued that the Master had given insufficient weight to a prior inconsistent statement which the respondent had given to the police on 25 November 1997, some eight days after the accident. On that occasion the respondent had not given any account of turning off the engine, getting out of the car and going to the door of the house but said that he had pulled up and sounded the horn for Ms Towne to come out. Mr Everson argued that this inconsistency substantially undermined the credibility of Mr Reid’s evidence.

The potential importance of the prior inconsistent statement to the police cannot be doubted, but the Master expressly referred to it in his Reasons for Judgment and there is no apparent reason to suppose that he failed to give due weight to it. Nor, in our view, are there any other grounds for contending that the Master failed to use or misused his advantage in seeing and hearing either the appellant or the respondent.

The appellant bore the onus of proving that his injuries had been inflicted as a consequence of a breach of duty by the respondent and that onus could not be discharged by mere advertence to perceived deficiencies in the evidence given by the respondent. The Master accepted that he was not a witness whose account could be fully accepted. However, the Master’s inability to fully accept the evidence of one party obviously did not require him to fully accept the evidence of the other. Having found the evidence of both parties somewhat unsatisfactory he was forced to do his best to make a judgment as to which the more closely represented the truth of the matter. In doing so he relied in part upon the entries in ambulance and hospital records mentioned earlier. He also enjoyed the advantage of assessing the credibility of the parties in the witness box. Even if the version of events given by the respondent was not fully accepted, it did not follow that the appellant had discharged his onus of proof.

In such circumstances the decision should only be disturbed if the appellate Court considers it to be wrong and, in considering that issue, due allowance must be made for this advantage. See Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. In particular, the Court must take into account the fact that the Master had been in a better position to assign weight to the various factors affecting findings as to credibility. Furthermore, as McHugh J said in Rosenberg v Percival (2001) 205 CLR 434 at [41], “Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge had given insufficient weight or consideration to other facts and circumstances in the case”. In the present case we are not satisfied that there is any reason to believe that the Master may have misused his obvious advantage in assessing the credibility of the parties and otherwise assessing the weight of the evidence in the case.

Second, Mr Everson argued that the Master had erred in applying the principle in Jones v Dunkel (1959) 101 CLR 298 to the absence of evidence from Ms Towne. He adverted to the following passage at [12] of the Reasons for Judgment: Ms Towne did not give evidence. Mr Widera said in cross-examination that he had had a discussion with Mr [sic] Towne the previous day, and thought she might give evidence in his case. She could support both versions, as Mr Widera says that she would agree that he did not have much to drink that night, and Mr Reid says that she would confirm that Mr Widera knew and disliked Mr Reid. It seems to me, and counsel endorsed this, that an inference could be drawn both ways from the absence of Ms Towne as a witness.

Mr Everson maintained that it had been wrong to suggest that counsel had endorsed such an approach and that there had been no basis for any inference adverse to the appellant.

The transcript of the proceedings before the Master suggests that the issue actually arose during the course of an address by Mr McDonough, who appeared for the respondent. Mr McDonough stated that he did not think he was in a position to say that any inference should be drawn. The Master then interposed the comment, “because it goes both ways”, and Mr McDonough responded by pointing out that Ms Towne could have been called by either party and making it plain that he was not seeking a Jones v Dunkel inference against the appellant. Whilst it may be true that the appellant’s counsel did not intervene in this exchange or otherwise endorse the position that had been taken, the matter was left on the basis that no inference was sought to be drawn against the appellant by reason only of the absence of Ms Towne. Mr Everson submitted that, notwithstanding this exchange, it was clear from the terms of the passage quoted that the Master had, in fact, drawn such an inference against his client. He argued that, whilst a similar inference may also have been drawn against the respondent, that did not mean that the inference, which he maintained had been improperly drawn against his client, had been of no significance. He also suggested that the inference drawn against the appellant had related to the amount of alcohol he had consumed that evening, whilst any inference drawn against the respondent had related to a different issue, namely, whether he had been known to the appellant. Hence, it could not be said that the effect of the inference drawn against his client had been effectively nullified by a contrary inference to the same effect.

The principle in Jones v Dunkel is that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the evidence of that witness would not have assisted that party’s case. See Jones v Dunkel at 308, 312 and 320-1; O’Donnell v Reichard [1975] VR 916 at 929; and Bandi v Mingot (1976) 12 ALR 551 at 559-60. However, the significance of any such failure will ultimately depend upon whether, in the circumstances, it should be inferred that the party expected to call the witness feared to do so. There may be many circumstances in which such an inference would be entirely inappropriate. For example, a party may be unaware of what the witness could say or may have reason to believe that he or she would not tell the truth. See, for example, Ho v Powell (2001) 51 NSWLR 572.

In the present case, however, the Master did not say that he had drawn or intended to draw such an inference against either party and, in suggesting that since both had failed to call Ms Towne to give evidence, an inference could be drawn “both ways”, I think he was merely intending to explain why he was not prepared to do so.

Mr Everson nonetheless maintained that it was implicit in the Reasons for Judgment that such inferences had been drawn and in support of that submission referred to the following passage at [20]: On all of the evidence before me, which is somewhat unsatisfactory as both the plaintiff and the defendant could, it seems to me, have brought witnesses to back their versions, particularly as to the question of whether Mr Widera knew Mr Reid, I am not satisfied on the balance of probabilities that the accident occurred as described by Mr Widera, and I prefer the version of events of Mr Reid.

In our view this passage does not support Mr Everson’s contention. The statement that both of the parties could have brought witnesses to support their version of events appears in a clause explaining why the Master had formed the impression that the evidence had been somewhat unsatisfactory. It provides no basis for an implication that the Master had drawn inferences against either of the parties by reason of their failure to call any such witnesses.

Third, Mr Everson submitted that the Master had erred in suggesting that the appellant’s denial of knowing the respondent was hard to reconcile with his acknowledgment that after the incident Ms Towne had left to spend the night with him. Mr Everson argued that this proposition seemed to have been predicated upon an assumption that Ms Towne had previously told the appellant of her involvement with the respondent. It is, of course, possible, that the appellant had been unaware of the relationship, was left bewildered when Ms Towne left and learned of the affair for the first time when she returned the next day. However, the Master was not obliged to accept that hypothesis. The significance of Ms Towne’s departure to spend the night with the respondent must be considered in the context of other evidence. As mentioned earlier, the appellant claimed that he and Ms Towne had had a perfectly friendly, happy evening and that the incident had occurred between 10.00 and 10.30 pm. There was nothing in his evidence to suggest that she was likely to leave in order to spend the night with someone else. Yet, on his account of the incident she not only did so, but left immediately after the accident, even before the ambulance arrived. It should be noted that the Master was entitled to think that it was unlikely that she would have left without explanation. The Master did not suggest that it was impossible to reconcile the two propositions but only that it would be difficult to do so. In the context of the other evidence in the case, I think that this view was reasonably open to him. In any event, the issue does not seem to have had a substantial impact on his decision.

Fourth, Mr Everson submitted that it was inappropriate for the Master to infer that the appellant’s claim that he had not known who the respondent had been was inconsistent with the ambulance note of a “domestic”. Mr Everson initially submitted that there was no evidence to establish that those statements had been made by the appellant rather than by Ms Towne, but abandoned that submission when his attention was drawn to evidence that Ms Towne had left prior to the arrival of the ambulance. In the alternative, Mr Everson argued that the term may have been intended to refer to an antecedent argument with Ms Towne rather than the incident involving the respondent. The most obvious answer to that submission is that the appellant had vehemently denied that there had been any domestic disturbance involving Ms Towne and maintained that they had had a perfectly happy evening together. At the hearing before the Master, the appellant had sought to deal with this issue by denying that he had used such a term when speaking to the ambulance officer. The Master was not, of course, obliged to accept the truth of that denial and was entitled to infer that it was most unlikely that an ambulance officer would have included the word in notes of a road accident unless it formed part of the history which he had been given by the appellant.

Fifth, Mr Everson argued that the Master had fallen into error in finding that entries in the hospital notes referring to an “altercation” and recording the words, “(driver known to him)” could only have come from the appellant and that they were incompatible with his claim that he had not known the respondent when the accident occurred. Mr Everson submitted that the Master should have taken into account the possibility that prior to being taken to hospital the appellant had been told by Ms Towne that it had been the respondent who had been the driver of the vehicle. Whilst this is a possible explanation for the entry suggesting that the driver had been known to him, I think that the alternative inference that the driver was known to the appellant at the time of the accident was open to the Master. The hospital notes were again tendered in the appellant’s case and he did not offer any such explanation. It is true, as the Master pointed out, that there had been no cross-examination on the issue but that did not mean that he was obliged to draw the inference sought by the appellant. Furthermore, the Master was entitled to consider these notes in the context of the reference to an “altercation” and reference to a “domestic” in the history given to the ambulance officers shortly before. In this context, such an inference was not only open to the Master, but virtually inescapable.

Finally, Mr Everson submitted that the Master had erred in finding that the appellant had run onto the road to kick the respondent’s car because that version of events was glaringly improbable and inconsistent with the injuries sustained by the appellant. We have carefully analysed the evidence in this case and are unable to accept this submission. On either version of events, the injuries would have been sustained when the appellant was struck by the respondent’s vehicle whilst he was in a standing position. Even on his own version he was able to walk back inside the house after the incident and, notwithstanding the fracture to his fibula, was walking around when the ambulance officers arrived.

Having carefully reviewed the transcript in the light of Mr Everson’s submissions, we are satisfied that the conclusions reached by the Master in this case were open to him on the evidence and see no reason to suppose that he has fallen into error.

We would dismiss the appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.