Davies v Pyke
[2004] VSCA 124
•22 July 2004
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 | 1st 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. | 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 act for the defendant. The deponent of an affidavit in support of the application said that the records of the hospital to which the plaintiff was admitted after the accident stated that the plaintiff was the rider of the motor cycle. That was said to be “fundamentally different to the defendant and the plaintiff’s later instructions of what occurred on the day of the accident.”
The Commission then applied for an order that it be added as a party to the proceeding. On 6 March 2002, a judge in the County Court ordered that the Commission be added as a third party to the proceeding. A new firm of solicitors, Kenyons, engaged by the defendant, filed a third party notice. The statement of claim endorsed on the third party notice alleged that the motor cycle was ridden by the defendant and claimed indemnity from the Commission in respect of any liability which the defendant might have to the plaintiff. The Commission in its defence to that statement of claim, filed by a new firm, Deacons, denied that the plaintiff was a pillion passenger and that the defendant was the rider of the motor cycle.
On 30 August 2002, the proceeding came on for trial in the County Court. We have not been provided with a transcript of the early stages of the trial. According to the summary of proceedings filed on behalf of the appellant, the trial judge would not allow the matter to proceed with both the defendant and the Commission separately represented. The third party proceeding was struck out, and the Commission again assumed the conduct of the defence to the plaintiff’s claim. Pursuant to the leave of the Court, the solicitors for the Commission filed and served an amended defence denying that the motor cycle was being ridden at the time of the accident by the defendant and alleging that it was being ridden by the plaintiff.
When the trial resumed on 25 November 2002, Mr Titshall sought a ruling from the trial judge that he be permitted to tell the jury that he was acting for the Commission and not the defendant. His Honour said that the Commission was “not a party to the case” and said:
“It seems to me that the jury would be confused if Mr Titshall were to announce his appearance on behalf of the named defendant rather than the Transport Accident Commission ... [I]t is necessary for the Transport Accident Commission to make its position clear to the jury so that they will not be confused which in my view would otherwise be the case if Mr Titshall were to simply stand up and say he appears for the defendant.”
The trial judge relied on the decision of Anderson, J. in Insurance Commissioner v. Guy[3]. In that case, an action was brought against the administratrix of the estate of a person who was alleged to be the driver of a motor car for damages for injuries sustained in a collision involving the motor car. The appellant was the insurer of the motor car and was authorised by the Motor Car Act 1958 to take over the conduct of the action on behalf of the owner or driver. In the conduct of the action the appellant wished to dispute the allegation that the deceased was the driver of the motor car at the time of the accident. His dilemma was that if he took over the conduct of the proceedings, it might be said that he thereby admitted that the deceased was the driver, since the source of his authority to take over control arose because proceedings were brought against the driver. Anderson, J. held that the appellant was entitled to take over the conduct of the defence of the action notwithstanding his contention that the deceased was not the driver. His Honour made a declaration that the Commissioner was entitled to take over and control the action and, in so doing, to dispute that the deceased was the driver when the accident occurred.
[3][1972] V.R. 274.
The trial judge in the present case went further. It does not appear to have been an issue in this case that the Commission was entitled to conduct the defence to the plaintiff’s claim. Rather, the question was whether in doing so the Commission’s counsel could make clear that he was not simply representing the defendant and putting forward his version, but was actively prosecuting a case for the Commission, contrary to the defendant’s instructions.
When the jury was empanelled, Mr Titshall announced his appearance for the Commission. The jury were told of the role of the Commission as the body liable to meet the plaintiff’s claim and its entitlement to take over and conduct the defence to the proceeding and in so doing to dispute that the defendant was the rider of the motor cycle.
After a trial lasting nine days, the jury answered questions posed by the trial judge and found that the defendant was the rider of the motor cycle carrying the plaintiff as a pillion passenger and that there was no negligence on the part of the defendant which caused injury to the plaintiff. Accordingly, judgment was entered for the defendant.
The notice of appeal was served upon the defendant personally and upon Deacons. The notice of appeal was addressed to Deacons as the solicitors for the defendant.
The contentions of the appellant were threefold. First, it was said that the trial judge erred in permitting the Commission to conduct the proceeding before the jury in its own name and permitting counsel for the Commission to tell the jury, before any evidence was called, that the Commission denied that the plaintiff was a pillion passenger but rather contended that he was the rider. The second complaint, related to the first, was that the presence of the Commission as a protagonist in the proceeding enabled it to deprive the plaintiff of the benefit of the jury inferring that the absence of evidence from the defendant meant that they could more confidently draw inferences favourable to the plaintiff for which there was ground in the evidence and exposed the plaintiff to the detriment that the jury may well have found support for the Commission’s case in the absence of evidence from the defendant. This position was reached, so it was said, by reason of the operation of the rule in Jones v. Dunkel[4]. Without the presence of the Commission, the jury had a choice between placing the defendant in his own camp or that of the plaintiff. With the Commission present, the rival camps became those of the plaintiff and the Commission. In the latter event, the jury was more likely to place the defendant in the plaintiff’s camp. Finally, it was submitted that no reasonable jury, properly instructed, could have found that there was no negligence on the part of the defendant which was a cause of injury to the plaintiff.
[4](1959) 101 C.L.R. 298.
Paragraphs (b ) and (c) of s.94(10) of the Transport Accident Act provide that the Commission may “take over during such period as it thinks proper the conduct and control on behalf of the owner or driver of any proceedings” to enforce a claim against the owner or driver against which the Commission is bound to provide indemnity, and “may defend or conduct such proceedings in the name of the owner or driver and on the owner’s or driver’s behalf.” In my opinion, in exercising those powers the Commission is not limited to propounding a case that accords with the instructions of the owner or driver. The Commission is entitled to act in its own interests as the entity liable to pay the claim if it succeeds. It is not limited to advancing the view of the facts which the owner or driver espouses.
Further, in my view, the Commission is not bound to remain hidden from the Tribunal seized of the claim. In the majority of cases, the contest is between competing versions of the facts advanced by the plaintiff and the owner or driver indemnified by the Commission. In those cases, the opposing sides are properly the plaintiff on the one hand and the owner or driver of the registered motor vehicle on the other hand. There is no need for the Commission to emerge from behind the defendant. In other cases, and the present case is an example, the real contest is between the plaintiff and the Commission; the defendant’s agenda is not that of the entity that must ultimately meet the claim. In my opinion, in such a case, a jury should not be left in the dark, but should be apprised of the true position. The consequence of hiding the truth from this jury would have been to present it with a choice of the camps into which the defendant was to be placed as a witness which did not reflect the facts.
The rule in Jones v. Dunkel enables the drawing of inferences against a party “failing to call a witness who would be expected to be available to such a party to give evidence for such a party and who in the circumstances would have a close knowledge of the facts on a particular issue.”[5] Where the missing witness is a party, any inferences would normally be drawn against that party. Failure to call a witness may be explained and thereby preclude the rule from having any application. An explanation that can have this effect is that the witness is hostile.[6] In my view, the jury was likely to have been confused if counsel for the defendant had sought to explain his absence from the witness box on the basis that he was hostile to his own interests. On the other hand, it was readily understandable that the defendant could be hostile to the interests of the Commission as the entity liable to meet the plaintiff’s claim. Accordingly, I am of the opinion that the trial judge did not err in permitting counsel to announce his appearance for the Commission and put the Commission forward as the plaintiff’s real opponent.[7]
[5]O’Donnell v. Reichard [1975] V.R. 916 at 921 per Gillard, J. See also Earle v. Castlemaine District Community Hospital [1974] V.R. 722 at 734-5 per Lush, J.; Payne v. Parker [1976] 1 N.S.W.L.R. 191 at 201-2 per Glass, J.A.
[6]Smith v. Samuels (1975) 12 S.A.S.R. 573 at 581 per Bray. C.J. See also Ghazal v. Government Insurance Office of N.S.W. (1992) 29 N.S.W.L.R. 336 at 343 per Kirby, P.; Spence v. Demasi (1988) 48 S.A.S.R. 536 at 537, 538 per Cox, J.
[7]Cf. Fabre v. Arenales (1992) 27 N.S.W.L.R. 437 at 450-1 per Mahoney, J.A.
Nettle, J.A. referred the parties to the decision in King v. Wilkinson[8], which concerned an accident in which a man who was a passenger in a motor car driven by the defendant died. In an action brought by the deceased’s widow, the defendant gave evidence that he and the deceased were sober when the accident occurred. Counsel for the defendant, who was instructed by the compulsory insurer of the motor vehicle, sought to establish the defences of contributory negligence and volenti non fit injuria, and led evidence that the defendant and the deceased had been under the influence of alcohol. The trial judge ruled that neither of the defences should be left to the jury, apparently on the ground that the defence could not go behind the defendant’s “admissions”. On appeal, it was held that the defences should have been left to the jury. Notwithstanding inconsistencies in evidence, every relevant issue which could be supported by the evidence should have been left to the jury. The Full Court, consisting of Street, C.J., Owen, J. and Roper C.J. in Eq. spoke of the role of the insurer, and said that in the majority of cases the fact that the defendant was insured is irrelevant. They continued:
“But there are cases in which the fact that the defendant is insured is a relevant fact, in which case neither the rule of practice nor the rule of law prevents it being brought to the jury’s attention. In the present case, we think the fact that the defendant was insured was a relevant fact. It threw light on the weight to be given to his ‘admissions’ of sobriety. It would have been wrong for counsel for the plaintiff to have introduced the fact of insurance, because he was not concerned to attack Wilkinson’s evidence that he was sober, but we are of opinion that counsel for the defence might legitimately have introduced the matter and put to the jury that the defendant had no real interest in the proceedings – except perhaps to help the plaintiff – and that this fact might assist them when weighing his evidence that he and King were sober against that of the police officers and the doctor that they were not.”[9]
Similarly, in the present case, I am of the view that the fact that the Commission, not the defendant, was liable to meet the plaintiff’s claim was a relevant fact which threw light on the significance of the failure of the defendant to give evidence.
[8][1957] 57 S.R.(N.S.W.) 444.
[9]Above at 448. See also Gannon v. Gannon (1971) 125 C.L.R. 629 at 645 per Windeyer, J.; Kabadanis v. Panagiotou (1980) 47 F.L.R. 221 at 230 per Blackburn, Franki and Keely, JJ.; Jackamarra v. Krakouer, unreported, Full Court of the Supreme Court of Western Australia, 21 December 1998.
Evidence of the circumstances in which the plaintiff was injured was given by the plaintiff and by two motor cycle riders who accompanied the plaintiff and the defendant. Their evidence was that the wheels of the motor cycle slid while it was negotiating the second half of a tight S-bend, causing the motor cycle and its occupants to hit the roadway. One of the riders said that there was gravel on the road, which in his view contributed to the accident. No evidence was led as to the visibility of the gravel or whether it was an isolated patch. He had no criticism to make of the defendant’s riding. He was travelling at about 60 kilometres an hour, and the other motor cycles were travelling at about the same speed. He said that all the motor cycles were “taking it easy” and not speeding. The other motor cyclists said that it was more difficult to control a motor cycle carrying a pillion passenger.
He said:
“If you’re turning into corners and the pillion doesn’t lean with you, it can throw the whole balance of the motor cycle out …”
He said that even if the pillion passenger behaved appropriately, “it’s still very different to riding solo.” The plaintiff gave evidence that the defendant’s motor cycle was travelling at about 40 kilometres an hour.
The jury could have concluded from this evidence that the defendant was riding at a safe speed and crashed because of the presence of gravel on the road, which he could not reasonably have anticipated, at a time when his control of the motor cycle may have been affected by the movements of the plaintiff. Counsel for the plaintiff submitted that the accident was not the sort of event which ordinarily occurred without negligence on the part of the rider of a motor cycle and accordingly an inference should have been drawn that the defendant was negligent. The evidence of the presence of gravel and the possibility of de‑stabilization caused by the movements of the pillion passenger, however, enabled the jury to think that there was an explanation of the accident which was consistent with the absence of negligence on the part of the defendant.[10] In my opinion, the evidence in this case was not left in such a state that the jury was bound to find that the defendant was negligent.
[10]Cf. Government Insurance Office (N.S.W.) v. Fredrichberg (1968) 118 C.L.R. 403 at 414 per Barwick, C.J.
In my opinion, the appellant has not demonstrated either error on the part of the trial judge or that the jury’s verdict was unreasonable. I would dismiss the appeal.
NETTLE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of my brother Buchanan and with respect I agree with his Honour that the appeal should be dismissed. There are, however, two matters upon which I wish to add some
observations of my own.
The first is the question of whether the judge below erred in allowing the Transport Accident Commission to conduct the defence of the proceeding in the name of the Commission. I agree with Buchanan, J.A. that where the Commission assumes conduct of the defence of a proceeding pursuant to s.94(10) of the Transport Accident Act and the circumstances are such that the named defendant has no real interest in the proceeding – except perhaps to help the plaintiff – it is not inappropriate for defence counsel to explain to the jury that he or she is retained by the Commission to conduct the defence of the proceeding, and that the interests of the defendant do not necessarily coincide with those of the Commission, and to conduct the defence accordingly.[11]
[11]See, for example, King v. Wilkinson (1957) 57 S.R.(N.S.W.) 444 at p.448; Kabadanis v. Panagiotou (1980) 47 F.L.R. 221 at p.220; Jackamarra v. Krakouer, unreported, SAFC 21 December 1998, BC 9807035 at p.5.
But even in those circumstances it is not appropriate for defence counsel to announce his or her appearance in the name of the Commission. The Commission’s only rights under s.94(10) are to conduct the defence in the name of the defendant and counsel cannot conduct the defence in the name of the defendant and purport at the same time to appear for the Commission or for anyone else. If the Commission seeks to appear as a party in its own right it may apply to be joined as an additional defendant, but in that event it may not conduct the defence of the named insured. In my opinion the judge erred in permitting counsel to announce to the jury that he appeared for the Commission and although the error constituted no more than a procedural defect the practice should not be repeated.[12]
[12]Jackamarra v. Krakouer supra at p.5 per Anderson, J.
The second matter concerns the inferences open to be drawn from the failure of a plaintiff to call a defendant who is said to be in league with the plaintiff.
I agree with his Honour that in a case of this kind the fact that a defendant may be perceived to be in league with the plaintiff is something which a jury may be directed can be taken into account in deciding whether to draw from the defendant’s absence from the witness box an inference adverse to the defence. In other words, the fact that the defendant and plaintiff may be perceived to be in league is what is described in some of the authorities as a “legitimate explanation” for the failure of the Commission to call a witness who one would ordinarily expect would be available to the Commission.[13] But without expressing a concluded view upon the subject, I doubt that the absence of the defendant from the witness box in such circumstances is something from which it is open to draw an inference adverse to the plaintiff.
[13]See Fabre v. Arenales (1992) 27 N.S.W.L.R. 437 at 449-450, to which Buchanan, J.A. has referred.
As at present advised I consider that the law upon the subject is as stated by Glass, J.A. in Payne v. Parker, which is to say that it is not open to draw an inference against a party based upon that party’s failure to call a witness unless:
“…it will be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other…”[14]
[14][1976] 1 N.S.W.L.R. 191 at pp.201-2; and see Cross on Evidence, Aust. ed. At [1215].
For the reasons given by Buchanan, J.A. it is not inappropriate to characterize the defendant in this case as having been in the camp of the plaintiff. But we were not taken to any authority and I have not been able to find any myself where the possibility of connivance between the plaintiff and the defendant has resulted in anything more adverse to the plaintiff than a legitimate excuse for the failure of the defence to call the defendant as a witness. In my opinion it is a surprising proposition that the possibility of connivance between the plaintiff and the defendant should be thought to render it natural for the plaintiff to produce the defendant as a witness or expected that the defendant would be available to the plaintiff in the relevant sense.
The point was not taken on appeal and therefore does not affect the outcome. But I would wish to reserve to another day and until after full argument a final decision on the question.
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