Beazley JA at 1; Hodgson JA at 2-61 & 85; Davies AJA at 62
LOWER COURT JURISDICTION :
District Court
LOWER COURT FILE NUMBER(S) :
5120/98
LOWER COURT JUDICIAL OFFICER :
Gibb, DCJ
COUNSEL:
Mr. J.D. Hislop QC with Mr. D.J. Russell for appellant Mr. D.G. Nock SC with Mr. P. Jones for respondent
SOLICITORS:
W.R. Harvey & Associates, Parramatta for appellant Sanders Simpson & Freed, Caringbah for respondent
CATCHWORDS:
EVIDENCE - Onus of proof - Issue on which party bearing onus was the only witness able to give direct evidence - Deliberate decision not to call party - Applicability of Jones v. Dunkel principle - EVIDENCE - Hearsay - Double hearsay admitted for different purpose - Whether Evidence Act s.60 excludes application of hearsay rule - DAMAGES - Loss of travel benefits - Whether damages equal to face value of travel benefits lost. D.
The respondent, who was the plaintiff at first instance, was cycling, when he was involved in a collision with a car driven by the appellant. The appellant admitted a breach of duty of care to the respondent, but alleged contributory negligence inter alia on the basis that the respondent had no front light on his bicycle.
The appellant was present at the hearing but was not called to give evidence, and no explanation was given for not calling him. The trial judge inferred that there was nothing the appellant could say that would have assisted his case in respect of the allegation of contributory negligence.
The trial judge found that the respondent was at fault in not taking reasonable care for his own safety, but was not satisfied that this negligence caused or contributed to the causation of the accident.
The respondent’s employment with Qantas was terminated because of the accident, and as…
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.
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Details
AGLC
Ho v Powell [2001] NSWCA 168
Case
[2001] NSWCA 168
Decision Date
CaseChat Overview and Summary
The parties to this appeal were Ho (the appellant) and Powell (the respondent). The dispute concerned the respondent's claim for damages arising from a motor vehicle accident. The appeal was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the trial judge erred in applying the principle established in *Jones v Dunkel* to the respondent's failure to call himself as a witness, and whether the admission of certain evidence constituted inadmissible hearsay, particularly in light of section 60 of the *Evidence Act 1995* (NSW). A further issue concerned the assessment of damages for the loss of travel benefits, specifically whether the quantum of damages should be the face value of those benefits.
The Court of Appeal considered the application of the *Jones v Dunkel* principle, which allows an inference to be drawn against a party who fails to call a witness whose evidence would elucidate a matter in issue. The Court held that while the principle could apply, it was not determinative and the trial judge had given it undue weight. Regarding the hearsay issue, the Court found that the evidence in question was admitted for a purpose other than proving the truth of its contents, and therefore section 60 of the *Evidence Act 1995* (NSW) did not operate to render it inadmissible hearsay. On the question of damages for loss of travel benefits, the Court determined that the appropriate measure was not the face value of the benefits, but rather their actual value to the respondent.
The Court of Appeal allowed the appeal in part, setting aside the original judgment and remitting the matter for re-assessment of damages.