Ho v Powell

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.