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Davies v Pyke

Davies v Pyke

Case [2004] VSCA 124 22 July 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3700 of 2003

ROBERT ANDREW DAVIES
	Appellant
v.
BARLOW PYKE	Respondent

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JUDGES:	CALLAWAY, BUCHANAN and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23-24 June 2004
DATE OF JUDGMENT:	22 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 124	1^st Revision: 26 July 2004

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Negligence – Motor vehicles – Defence conducted by counsel briefed for Transport Accident Commission – Whether counsel could announce appearance for Commission – Whether counsel obliged to conduct defence in accordance with defendant’s version of events – Defendant said to be in league with plaintiff – Defendant not called by either side to give evidence – Rule in Jones v. Dunkel (1959) 101 C.L.R. 298 – Whether open to draw inference against plaintiff – Verdict of no negligence on part of defendant not unreasonable.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R.P. Gorton, Q.C. Mr C.J. Blanden	Burt & Davies
For the Respondent	Mr M.R. Titshall, Q.C. Mr D. Masel	Deacons

CALLAWAY, J.A.:

I agree that this appeal should be dismissed for the reasons given by Buchanan, J.A. I also agree with Nettle, J.A. that the learned trial judge erred in permitting counsel to announce that he appeared for the Transport Accident Commission, as opposed to explaining to the jury that he was briefed on behalf of the Commission to conduct the defence and that the interests of the defendant did not necessarily coincide with those of the Commission. Like the other members of the Court, I would reserve for another day the question whether the absence of the defendant from the witness box in a case like this is something from which it is, or may be, open to draw an inference adverse to the plaintiff.

BUCHANAN, J.A.:

On 16 December 1997, a motor cycle carrying the appellant, whom I shall call “the plaintiff” and the respondent, whom I shall call “the defendant”, crashed on the road between Kinglake and St. Andrews. The plaintiff sustained a fracture dislocation of his right shoulder.

The plaintiff brought proceedings against the defendant for damages. He alleged that he was the pillion passenger on the motor cycle and the accident was caused by the defendant’s negligence in controlling the motor cycle. As the motor cycle was registered, the Transport Accident Commission (“the Commission”) was bound to indemnify “the owner or driver” of the motor cycle against any liability in respect of an injury caused by or arising out of the use of the motor cycle[1] and was entitled to defend the proceeding in the name of the defendant.[2] The Commission instructed lawyers who filed a defence on behalf of the defendant admitting that he was the rider of the motor cycle but denying that he was guilty of any negligence.

[1]Section 94(1)(a) of the Transport Accident Act 1986.

[2]Section 94(10)(c) of the Act.

TAC Law Pty. Ltd., the legal representatives appointed by the Commission to act for the defendant, applied for and were granted leave to cease to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davies v Pyke

Details

AGLC: Davies v Pyke [2004] VSCA 124
Case: [2004] VSCA 124
Decision Date: 22 July 2004

CaseChat Overview and Summary

In the case of Davies v Pyke, the plaintiff, Davies, sought to hold Pyke liable for damages arising from a motor vehicle accident. The dispute centred on whether Pyke was negligent in the operation of his vehicle, which resulted in an accident with Davies. The case was heard in the Supreme Court of Victoria. The court was tasked with determining whether the defendant's legal representation, who was briefed by the Transport Accident Commission, could properly announce their appearance on behalf of the Commission and whether this counsel was obligated to conduct the defence in alignment with Pyke's version of events. Additionally, the court needed to consider whether Pyke's assertion that he was in league with the plaintiff could be used against Davies and whether the absence of Pyke's testimony from either party could affect the case.

The court examined whether the counsel's announcement of appearance for the Commission was permissible and whether such counsel was bound to advocate strictly in accordance with Pyke's account of the events. This raised the question of whether Pyke's claim of collusion with Davies could be used to draw adverse inferences against the plaintiff. Furthermore, the court needed to determine whether, given that Pyke did not testify, it was permissible to infer any unfavourable implications for Davies. The court also considered the application of the rule in Jones v Dunkel, which pertains to the drawing of inferences when a party fails to call a witness who could provide favourable evidence.

The court concluded that the counsel's appearance for the Commission was valid, and that the counsel was not obliged to strictly adhere to Pyke's version of events. The court ruled that Pyke's claim of collusion with Davies did not permit an inference against the plaintiff, especially since Pyke did not testify. The court held that the verdict of no negligence on Pyke's part was not unreasonable given the evidence presented. The court found that the trial judge's assessment of the evidence and the inferences drawn from it was within a reasonable scope. The court upheld the verdict in favour of Pyke, affirming that there was no negligence on his part in the incident.

Orders