King v Collins - [2007] NSWCA 122

NEW SOUTH WALES COURT OF APPEAL

CITATION: KING v COLLINS [2007] NSWCA 122

FILE NUMBER(S):
40112/06

HEARING DATE(S): 12 February 2007

JUDGMENT DATE: 25 May 2007

PARTIES:
Stephen King – Appellant
Mark Theo Collins - Respondent

JUDGMENT OF: Mason P Santow JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4939/04

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

LOWER COURT DATE OF DECISION: 15 February 2006

COUNSEL:
S. Norton SC/E.E. Walsh – Appellant
S.G. Campbell SC – Respondent

SOLICITORS:
Brydens Law Office, Liverpool – Appellant
Sparke Helmore, Sydney - Respondent

CATCHWORDS:
APPEAL – adverse credibility finding – whether substantial wrong or miscarriage of justice occasioned – application of Supreme Court Act 1970 (NSW), s 75A and Supreme Court Rules, Part 51 r 23
EVIDENCE – Jones v Dunkel inference – the plaintiff’s evidence rejected as implausible or incredible – whether “no evidence” to support a necessary inference – compartmentalising evidence - need to consider cumulative effect, even if parts carried little weight – failure to call relevant witnesses

LEGISLATION CITED:
Motor Accidents Compensation Act 1999 (NSW), ss 3, 4
Road Transport (General) Act 1999 (NSW)
Road Transport (Vehicle Registration) Act 1997 (NSW)
Supreme Court Act 1970 (NSW), s 75A
Supreme Court Rules 1970, Part 51, r 23
Workers Compensation Act 1987 (NSW)

CASES CITED:
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Jones v Dunkel (1959) 101 CLR 298
Mastronardi v State of New South Wales [2007] NSWCA 54
Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121

DECISION:
1. Allow the appeal and set aside the judgment of the District Court delivered on 15 February 2006
2. Remit the matter for a new trial in the District Court on all the issues
3. Order that the costs of the first trial abide the outcome of the retrial
4. Order that the Respondent pay the Appellant’s costs of the appeal
5. Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if not precluded by s 6(7).

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40112/06
DC 4939/04
MASON P
SANTOW JA
BASTEN JA
25 May 2007

Stephen KING v Mark Theo COLLINS

On 25 February 2002 the Appellant, Mr Stephen King, attempted to climb down from the driver’s cab of a prime mover, but slipped on the top step and fell heavily, injuring his back. The Appellant made a claim against the Respondent, Mr Mark Collins, the owner of the prime mover, alleging an injury caused by a motor accident. The Appellant claimed that the step was loose and that he had previously reported it to the Respondent’s employee. There was no evidence corroborative of the defect or of the reporting. At trial, the case on liability resolved itself into an issue of the Appellant’s credit as to whether the step was loose and gave way. The trial judge found for the Respondent.

The issue on appeal was whether the trial judge erred in reaching the conclusion that the step was not loose based on various matters of concern about the Appellant’s credit, which led his Honour to conclude that the Appellant was an “unreliable witness”.

The Court held, allowing the appeal and ordering a new trial:
(per Basten JA, Mason P and Santow JA agreeing)

Omission of particular material in written records of the incident must be assessed against the purpose and nature of the documentary record, the circumstances in which it was created and by whom: at [36].

Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, applied.

There may be error in rejecting a plaintiff’s testimony as implausible or incredible and then concluding that there is “no evidence” of a matter and therefore no need to consider the failure of the defendant to call a witness in its camp, who might have contradicted the plaintiff. There was evidence, if the plaintiff’s evidence were accepted, of a defect in the vehicle; there was no explanation for the absence of other relevant witnesses. Little weight could be attached to an inference that might have been drawn from the defendant’s failure to call them: at [44]–[45].

Jones v Dunkel (1959) 101 CLR 298, considered.

There were significant reasons which would have allowed the trial judge to reject the plaintiff’s testimony. However, there were also significant factual errors in the reasoning of the trial judge, in rejecting the plaintiff’s evidence. Such errors were sufficiently material to the findings on credit to conclude that the trial miscarried in a significant respect. The plaintiff not having had his case properly considered, the rejection of his claim involved a substantial wrong or miscarriage of justice. This Court not being able to determine whether a retrial would give rise to a different result, a retrial is necessary: at [47]–[48].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40112/06
DC 4939/04
MASON P
SANTOW JA
BASTEN JA
25 May 2007

Stephen KING v Mark Theo COLLINS

Judgment

MASON P: I agree with Basten JA.
SANTOW JA: I agree with Basten JA.
BASTEN JA: On 25 February 2002 the Appellant, Mr Stephen King, drove a prime mover from Matraville to Rose Street, Campbelltown, south west of Sydney. On arriving at his destination, he attempted to climb down from the driver’s cab, but slipped on the top step and fell heavily, injuring his back. Mr King (as plaintiff) made a claim against the Respondent, Mr Mark Collins (as defendant), in the District Court alleging an injury caused by a motor accident. To succeed, the plaintiff needed to establish that his injury was caused by the “fault” of the owner of the vehicle and, relevantly for present purposes, by a “defect” in the vehicle: see Motor Accidents Compensation Act 1999 (NSW), as in force at the time of the accident, s 3 “injury” (a)(iv). The term “fault” is defined to mean “negligence or any other tort”: s 3. Accordingly, the plaintiff needed to identify a defect in the vehicle, which caused him to slip and which should not have existed, if the owner had taken reasonable care of the vehicle prior to the accident. As a practical matter, it was therefore necessary for the plaintiff to identify, at least in general terms, the nature of the defect and, that it was known to, or ought reasonably to have been known to, the defendant.
It will be necessary to refer to the evidence given by the Appellant at trial in relation to the defect in more detail below; for present purposes it is sufficient to identify the defect as a loose step below the door of the driver’s cabin and attached to the top of the fuel tank of the vehicle. The step tended to tilt when weight was placed upon it because the metal through which the bolts passed had worked loose over time.
A certificate issued by the NSW Roads and Traffic Authority showed that, as at the date of the accident, the “registered operator” of the prime mover was Mark Theo Collins. The term “registered operator” under the Road Transport (Vehicle Registration) Act 1997 (NSW) and the Road Transport (General) Act 1999 (NSW) (as then in force) is the person who is the “owner” of the vehicle for the purposes of the Motor Accidents Compensation Act 1999 (NSW): see s 4(1).
The trial in the District Court ran over four days from 7-10 February 2006. The plaintiff was the only witness who gave oral evidence. On 15 February 2006 the trial judge gave judgment for the defendant, without assessing damages.
The issue to be determined was identified by the trial judge in the following terms (Judgment at p6):
“[T]he plaintiff’s case on liability was ultimately confined to the question of whether or not he could prove that his accident was caused by a defect in the vehicle for which the defendant, as its owner, was responsible. That largely resolved itself into an issue of credit as to whether or not the subject step on the truck was loose and ‘gave way’ at the time of the accident. It was conceded by the defendant that if that was so then there was a ‘defect’ and that the plaintiff suffered injury caused by the fault of the owner in the use of the vehicle by that ‘defect’.”
The issue of credit was determined against the plaintiff, his evidence of the state of the step not being accepted. In seeking to overturn that finding of fact in this Court, the Appellant needed to assay the difficult task of demonstrating that there were such flaws the trial judge’s reasoning and in his findings of subsidiary or primary facts as to render the judgment unsupportable. Although the primary relief sought in the notice of appeal was a judgment in favour of the Appellant, it was conceded during the hearing of the appeal that the best result for the Appellant would be an order for a retrial. The powers of the Court under s 75A of the Supreme Court Act 1970 (NSW) would appear, in such circumstances, to be qualified by Part 51, r 23 of the Supreme Court Rules 1970, although the relationship between those provisions is not entirely clear: see Mastronardi v State of New South Wales [2007] NSWCA 54 at [72]-[85]. In any event, the Appellant accepted that it was necessary for him to demonstrate some substantial wrong or miscarriage, but treated that condition as satisfied by a demonstration of error on the part of the trial judge. No additional requirement was suggested by the Respondent to be necessary in the circumstances.
Approach of trial judge
The conclusion reached by the trial judge was expressed in the following terms (Judgment at p22):
“In the circumstances I have not accepted the plaintiff’s evidence that at the time of the accident the subject step was loose and ‘gave way’. I have found, on a balance of probabilities, that it was not loose and did not ‘give way’.”
That conclusion was reached on the basis of various matters of concern about the plaintiff’s credit, which led his Honour to conclude that the plaintiff was “an unreliable witness”: Judgment, p8. The first matter raised was “his vagueness and brevity as to the alleged looseness of the subject step”. His Honour concluded that his explanation lacked “sufficient detail and clarity to be convincing”: Judgment, pp8 and 11. The second matter of concern was said to be the absence from various written accounts of the accident, made in claim forms and accident reports, of any reference to the fact that “the step was loose and had moved”: Judgment, p12. The third matter of concern was “the plaintiff’s first giving of notice of the accident to someone in authority”, which was said to be a topic on which the plaintiff “prevaricated”: Judgment, p20. Further, it was said only to have been raised in cross-examination and that the plaintiff had “never told the defendant about the accident”.
In a sense, each of these “concerns” is a variation on a single theme, the gravamen of which is that, although the plaintiff consistently said that he slipped and fell, it was only belatedly that he raised the cause of his slipping as the loose step. Because that element was at the heart of the defendant’s case, one might have expected cross-examination suggesting that the reference to the step being loose was a recent invention, possibly one resulting from legal advice as to the nature of the case which the plaintiff would need to run in order to succeed. However, there was no cross-examination explicitly to that effect.
In other respects, the plaintiff contended that the primary findings made by the trial judge did not fairly reflect the evidence given by the plaintiff and in some respects could be identified as plainly wrong. It is necessary to consider each of these errors and to determine whether, cumulatively, they call into question the finding in relation to credibility.
Reporting defect
It is convenient to consider first the evidence given (and findings made) with respect to statements by the plaintiff to those in charge of the transport business. To understand that evidence, it is necessary first to identify the individuals involved in the business.
As already noted, the truck which the plaintiff was driving at the relevant time was registered in the name of the defendant and had painted on it the business name “Mark Collins Transport”. The business was conducted from a factory unit at Pembury Road, Minto. The plaintiff gave evidence that Mark Collins Transport had “eight or maybe ten trucks”: Tcpt, p4. The plaintiff gave evidence that Mr Collins himself worked at the depot but that he got his instructions from Mr Trevor Robinson. Evidence was given without objection that “Mr Collins had there a mechanic” whose name was Peter Pierce (spelt ‘Peirce’ by the plaintiff, but ‘Pierce’ by the trial judge – the latter spelling will be adopted for the sake of consistency). Mr Pierce was responsible for carrying out maintenance on the vehicles: Tcpt, p12-13. Mr Trevor Robinson was referred to in some places as the “truck co-ordinator” (p48) and in other places as the “transport manager” (p89). There was another man, Mr Stephen Craig, who worked for the business and was in charge at the depot after Trevor Robinson went back to driving: Tcpt, p75. The plaintiff’s evidence gave rise to a reasonably available inference that each of these men worked in the business of Mark Collins Transport. Not only was Mr Craig identified by the plaintiff as in charge at the company’s office at the time of the accident (Tcpt, p75), but he was named on the workers compensation insurer’s claim form as the person to whom the accident was reported. A workplace assessment report of an assessment carried out on 23 May 2002 also recorded the plaintiff as having reported the incident to “Steve Craig”.
Taking the events in chronological order, the plaintiff gave evidence that he had noticed the movement in the step prior to the accident and had reported it to the mechanic at the depot, Mr Pierce: Tcpt, p13. He said the problem would have been simple to fix, but that he was not allowed to do mechanical work in his role “as a truck driver for Mr Collins”: Tcpt, pp11-12. After describing how the step moved when one trod on it, his evidence continued (Tcpt, p13):
“Q.Before the accident had you raised that matter with anybody there at the depot?
A.           Yeah, the mechanic.
Q.           Mr Pierce?
A.           Yeah.
Q.Can you tell me now please about how many times you had mentioned it to him?
A.           Over three weeks probably half a dozen times.
Q.           Is that how long that it’d been loose in that fashion?
A.           Yeah.
Q.           And what would you say to Mr Pierce on those occasions?
A.I just told him that the step was loose could he fix it, well one Friday I brought the truck in on the afternoon and I left the truck there for him to fix, I picked it up on the Saturday and he said he was too busy to fix it and I needed the truck that day.
Q.And on any of the other occasions that you mentioned it did he fix it?
A.           No.”
The trial judge summarised the evidence, but said that he did not accept it. The reason given was that (Judgment, p9):
“It was not mentioned in particulars and seemed inherently unlikely.”
The statement of claim by which the proceedings were commenced, filed on 26 November 2004, alleged that “whilst the Plaintiff was attempting to alight from the vehicle using a step or runner mounted on the fuel tank thereof below the cabin his foot slipped from that runner”; the pleading also alleged that “the runner was loose and defective and was not securely affixed to the fuel tank of the vehicle and was wet and slippery and worn”. It is true that, in the particulars of negligence, there was no allegation that the plaintiff had informed relevant persons employed in the business of the defect prior to the accident. However, for the want of pleading to affect the credibility of the plaintiff, there is a further inference to be drawn, namely that the plaintiff had not told his solicitors, at a time when the pleadings were being prepared, that he had reported the defect to a relevant person working in the business, prior to the accident. There is no doubt that counsel for the defendant challenged the plaintiff’s story that the step had been “wobbly” for a period of three weeks (Tcpt, pp81 and 86) and indeed his account that the step moved at the time of the accident. Further, evidence that he could have, but did not, repair the step may have cast doubt on his evidence of its condition. However, if it were accepted that his description of the state of the step was accurate, there seems to have been no separate reason for disbelieving his assertion that he had reported it, at least to Mr Pierce.
As already noted, his Honour thought that the plaintiff’s “vagueness and brevity as to the alleged looseness” of the step affected his credit. However, that conclusion is not easily understood. Brevity is not necessarily a failing in describing a simple mechanism, and care may need to be taken not to confuse vagueness of a kind which might affect credit with a level of inarticulateness in describing a state of affairs. In any event, the plaintiff’s evidence in chief in relation to the step was as follows (Tcpt, p11):
“Q.And was the fuel tank on the driver’s side, did it have any cut outs for steps or were the steps simply fixed on to the fuel tank?
A.No it had two little, two little bars that were welded to the tank and then the step went through like two bolt things and they were tightened with two bolts either side, the step itself had holes in it but they never had, the holes weren’t punched up the right way if you know what I mean.
…
Q. The step is made of what material?
A. I’d say it’d be aluminium.”
There was some further clarification in relation to the holes in the steps, and the fact that they appeared not to have perforations on the topside, which might have prevented slipping.
In cross-examination the plaintiff said that he was able to observe visually that “the bolts were too small for the holes”: Tcpt, p78. The cross-examination continued (p79):
“Q.These bolts you talk about they are not ridge bolts are they, they’re only small bolts I suppose?
A.           No, they’re not that small, they’re probably half inch.
Q.The bolts in these holes would be half an inch and how long would they be?
A.           Just long enough to go through the two metal plates.
Q.           So about an inch and a half?
A.           Probably two, two and a half inches long.
…
Q.Sorry, when you say the hole was too big for the bolts did you --
HIS HONOUR: Actually he didn’t say either of those things, he said the bolts were too small for the holes.
WITNESS: If you understand a truck right, wear and tear occurs. Now I was a bit heavier at that stage but in and out the truck you put your [weight] on the stair it tends to loosen up and turn the round holes into egg-shape holes, it’s only wear and tear.
…
Q.You knew it was just a simple case of getting a bolt and replacing it didn’t you?
A.           Yep.
Q.What about a flat washer on the head of the bolt, that would have fixed it wouldn’t it?
A.           No.
Q.           It wouldn’t have done?
A.It had a flat washer and a spring loader washer on it already.
Q.           Underneath?
A.           Mm.
Q.What about on the top where this hole was too big you say couldn’t you put a flat washer on the top of the bolt immediately under the head of the bolt, that would’ve fixed it wouldn’t it?
A.           No, the bolts went in sideways.
Q.           I’m sorry?
A.           They’re not from the top, they’re from the side.”
This evidence was neither vague nor brief. The thrust of the cross-examination, at least in these pages, was directed to the proposition that, if there had been a real problem with the looseness of the step, the plaintiff could readily have fixed it himself. (He agreed with that, but said he was not allowed to.)

It may be that his Honour’s comment on the inherent implausibility of the evidence, that the plaintiff had reported the defect to the mechanic over a period of three weeks on a number of occasions, stemmed from the likelihood that the plaintiff would have fixed the problem himself, had the mechanic been too busy. Particularly was that so in circumstances where the plaintiff had identified the defect as a matter requiring attention, presumably as an issue of safety. However, although the trial judge dealt with the evidence in some detail, that was not the explanation given.
Reporting accident
The next stage was the account of the actual accident. The defendant’s challenge to the plaintiff’s account of how the accident occurred was squarely based upon the fact that a number of written records, including claims forms, Workcover reports and medical reports, made reference to the cause of the accident, as recounted by the plaintiff, but none referred to the movement of the step. This was undoubtedly critical material, upon which his Honour was entitled to rely and which he identified as the “second matter of concern relating to the plaintiff’s credit”: Judgment, p12.
However, there are aspects of the reasoning of the trial judge in this regard which appear to involve factual errors. At p10, his Honour noted the brief description of the accident given in cross-examination when the plaintiff was asked to describe again in his own words what happened. His Honour then noted the evidence that he had not complained to Mr Collins (the defendant) and had merely “mentioned the matter” to Mr Robinson and Mr Pierce. His Honour further stated (p11):
“He did not say what he actually told either of them.”
His Honour continued:
“The plaintiff was then asked, ‘What was the main cause of your fall?’ He replied, ‘I slipped off the step’. He made no reference, in that answer, to the step being loose. If it had been loose it is likely that he would have said so in that answer.”
The evidence being referred to by the trial judge in that passage covered a little under two pages of transcript, at pp47-49. It commenced with the request to repeat “in your own words” what happened on the day of the accident. In giving that evidence, the plaintiff expressly stated that “as I got out of the truck I put my foot on the step, the step moved and I fell on the ground injuring my back …”. The fact that, when asked what was “the main cause” of his fall he merely said that he “slipped off a step” does not, with respect, demonstrate inconsistency in his present account.
Furthermore, his Honour’s description of the inadequacy of the complaints or reports at the time of the accident takes the intermediate evidence out of context. Between the first request for a description and the later request to identify the “main cause” of the fall, there were a number of questions and answers relating to the direction in which his body was facing as he left the truck and as to how he landed. The cross-examiner then diverted to deal with the prior complaints of which he had given evidence in chief. At transcript p48 the following exchange occurred:
“Q.         This step you say you made complaints about it?
A.           Three weeks prior.
Q.           And you never made any complaint to Mr Collins did you?
A.           Well he was never there.
Q.           Answer the question please?
A.           No.
Q.The only person you allegedly told was this Mr Pierce, is that right?
A.Mr Pierce and Trevor Robinson who is the truck co-ordinator.
HIS HONOUR: You mentioned the matter to whom?
A.           The truck co-ordinator.
Q.           What was his name?
A.           Trevor Robinson.
Q.           Did you mention it to anyone else did you say?
A.           Just the mechanic.
Q.           Who was that?
A.           Peter Pierce.”
The inference that this evidence about complaints concerned the cause of the accident is misleading. Further, to assert that the plaintiff merely “mentioned the matter” to two individuals is not to record what the plaintiff said, but to record the form of his Honour’s question. Although it is true that in answering questions in that passage of cross-examination he did not say what he actually told either of them, that was because neither his Honour nor the cross-examiner asked him to. However, in his evidence in chief, set out at [15], he did give such evidence.
His Honour returned to this material in relation to the “third matter of concern”, noted at [10] above. It related to giving notice of the accident to someone in authority. His Honour repeated his reference to a failure to tell Mr Collins and mentioning the matter to Messrs Robinson and Pierce: Judgment, pp20-21. Again, the context suggested that his Honour believed this evidence dealt with the reporting of the accident, not prior complaints about the defect in the step. His Honour then added a further criticism of the evidence (p21):
“There was no evidence as to who the employer was of either of those men. Nor did the plaintiff state what he said to either of them or when. The plaintiff did not say that he told either of them that the step was loose and had ‘given way’ when he had his accident.”
How the lack of evidence as to the employer of the other men affected the credit of the plaintiff is not entirely clear. However, the criticism is overstated in any event. The plaintiff’s evidence in chief was led, without objection, on the basis that not only the plaintiff, but the other men worked “for” Mr Collins. Indeed, counsel for the defendant asked more than once:
“Q. You’ve never ever told Mr Collins ….”: at Tcpt, pp77-78.
Further, the business name on the side of the truck (and other trucks) was said to be “Mark Collins Transport”. There was also evidence that, although the plaintiff had thought he was employed by “Mark Collins Transport”, he discovered later that his employer was in fact Lextan Pty Ltd, a company. At least by inference, the others working at the depot were also employed by the company. However, it is difficult to see that anything turns on this in relation to credit.
The comment that the plaintiff did not say what he had told either Mr Robinson or Mr Pierce was also both misleading and incorrect, as noted above at [26] in relation to the earlier incorrect statement to similar effect.
Although the reporting noted above did not relate to the actual accident, his Honour then said that counsel for the defendant “revisited” that topic later in his cross-examination. His summary of the evidence was to the following effect (Judgment, p21):
“He asked the plaintiff, ‘When did you first, on or after 25 February, tell anyone that the step moved?’ The plaintiff replied, ‘I’m not sure.’ He was then asked, ‘Have you ever told anyone in person that the step moved on 25 February 2002 and that that caused you to fall?’ The plaintiff replied, ‘The company.’ He did not state the name of the company or the name of the person he spoke to. On being asked the name of the person he replied, ‘It would have been Stephen Craig. He was the bloke who was in charge of the office.’ There was no evidence as to who was the employer of Mr Craig nor was there any evidence of what the plaintiff said to him, or when. The plaintiff did not say that he told Mr Craig that the step was loose and had ‘given way’ when he had his accident. The plaintiff had not mentioned Mr Craig when the topic of notice was first raised in cross-examination… .”
There are a number of difficulties which derive from this passage. First, the statement of the question to which the plaintiff replied “the company” as recorded by his Honour, is reasonably accurate. However, what occurred thereafter is significant, as noted in the transcript (at p75) in the following terms:
“A.         The company.
HIS HONOUR: Q.               Just a moment, what was the answer?
A.The company when I had the accident I phoned up, told the company what had happened. He said [?] the day of the accident or after.
Q.           You’re being asked who at the company?
A.The guy that would have been in charge at that time would be Stephen Craig … . I rang Stephen Craig and he was at the office.”
The implicit criticism that the plaintiff did not state the name of the company or the name of the person he spoke to is empty. He stated the name immediately he was asked to. He was not asked to identify the company, but had already stated that he worked for “Mark Collins Transport”; as noted above, nothing turned on that for the purposes of his credit. The further criticism about the lack of evidence of the employer of Mr Craig is also unfounded. There seems little doubt that he spoke to Mr Craig at some stage, as he supplied the accident report form for the plaintiff to complete. It is correct that, at this stage, he merely said that he had told Mr Craig “what had happened” but that was said in response to a question from his Honour seeking repetition of an answer just given. He was not asked to elaborate on that, although it was put to him that the written record created that day made no mention “of the step moving”: Tcpt, p76.
The final criticism implicit in his Honour’s comment that Mr Craig had not been mentioned when the topic of notice was first raised suggests that there might have been some doubt that he spoke to Mr Craig at all on that day. Given the written record, that seems highly implausible and the fact that it had not been mentioned when “the topic” was first raised is also entirely explicable: the topic raised on an earlier occasion concerned reports of the defect prior to the accident and not the reporting of the accident. His Honour’s mistake in this respect clearly affected his assessment of the plaintiff’s credibility.
The documentary record
There is no doubt that his Honour was entitled to place weight on the fact that the written records did not demonstrate any indication that the accident was caused by movement in the step when the plaintiff trod on it. However, some care must be taken in attributing too much weight to such documents.
As the trial judge noted, difficulties can arise where weight is placed upon statements prepared by others (or even by the plaintiff) where the contents of those statements are said to be inconsistent with the plaintiff’s testimony and those contents are not put to the plaintiff in cross-examination: see Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 590 (Kirby P, Waddell and Samuels AJJA agreeing) and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [34]-[36] (Mason P, Beazley and Tobias JJA agreeing). However, that problem did not, as his Honour correctly noted, arise in the present case. Relevant material was put to the plaintiff and he was given an opportunity to explain why the records did not contain reference to the defect in the step.
There is, however, a separate point which is that the omission of particular material must be assessed against the purpose and nature of the documentary record, the circumstances in which it was created and by whom. As Mason P noted in Davis, there may be various reasons why hospital records “make no mention of the mechanics of” an accident, in circumstances where the mechanics of the accident have “little to do with the diagnosis and treatment of an obviously serious injury”: at [36]. In other circumstances, it may be necessary to give consideration to the context of a particular statement or omission in particular documents. Thus, although the workers compensation insurer’s claim form asked “How did the accident occur, and what were you doing at the time?” it also gave an example – “(eg. slipped while climbing a ladder.)” It did not suggest that the reason for slipping needed to be identified. Further, the motor accident claim form, in a section in which the plaintiff had stated that he had “slipped on step while exiting truck then fell backwards onto the step which is what caused my injury” had merely asked for:
“Brief description of injuries received in the accident.”
Other parts of the latter claim form asked for a description of the accident, “including who you consider at fault” and how the accident happened and further, if someone other than the driver were at fault, the claimant was asked to identify that person and say “why”. In answer to the former question, the plaintiff did not identify who was thought to be at fault and in answer to the latter did not identify why the owner of the truck, Mark Collins Transport, was thought to be at fault. His Honour concluded (at p14) that if it had been true that the step was loose or that it had moved, “it is likely that the plaintiff would have mentioned it”. He also described the plaintiff’s explanations, or lack thereof, as “unimpressive”: Judgment, p15. These were inferences his Honour was entitled to draw, although the precise weight given to them in the overall assessment of credit, is unclear. In one document, being a register of injuries and treatment apparently kept for the purposes of the Workers Compensation Act 1987 (NSW) and the Occupational Health and Safety (First Aid) Regulations, under “Cause of injury”, after stating “slipped off stair runner then fell” the additional information was recorded:
“Runner was wet at time.”
Understandably, the absence of reference to the step moving, in that context, was significant. However, although his Honour accepted that it was raining at the time and that the step probably was wet, (a matter which was pleaded) no consideration was given to why the wetness of the step might have been referred to in one document, but not in others. If it had contributed to the plaintiff’s slip, it might have been considered significant that it was not recorded in other documents.
A further matter upon which his Honour relied was that, although the plaintiff went back to work after the accident, there was no evidence as to the state of the vehicle, or as to any inquiry in relation to it. His Honour said (p22):
“The plaintiff gave no evidence that anything was done to fix the subject step. That was despite the fact that he returned to work for several days about a month after the accident and therefore had an opportunity to find out. That gap in the plaintiff’s case was also a matter of concern relating to the plaintiff’s credit as to how the accident happened and why.”
Absence of witnesses
His Honour noted that it was “at the forefront of the final submissions of counsel for the plaintiff that the plaintiff should succeed on liability because counsel for the defendant did not call any witnesses”: Judgment, p25. His Honour noted that the submission was based on the principle stated in Jones v Dunkel (1959) 101 CLR 298 that an inference favourable to the plaintiff for which there was support in the evidence might more confidently be drawn when a person who might have given evidence to the contrary and whom one might expect the defendant to call, was not called, without explanation for his or her absence. Clearly the submission, as recorded, went far beyond that principle.
The plaintiff, on the appeal, did not complain of the statement of principle set out in his Honour’s judgment (at pp25-28) but rather the failure to apply the principle in the assessment of the plaintiff’s credit. It was contended that where there is doubt as to the accuracy or truthfulness of the plaintiff’s evidence, those doubts may more readily be resolved in his favour where no witness is called to rebut his assertions. In particular, it was argued that, if, as was suggested in cross-examination, the step was not loose and the plaintiff never suggested to Mr Pierce (the mechanic) that it was, it would have been open to the defendant to call Mr Pierce to contradict the plaintiff. Similarly, Mr Craig could have been called to rebut the suggestion that the plaintiff told him that he slipped when the step moved.
The trial judge relied on the reasoning of Gleeson CJ and McHugh J in Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121 at [51]-[53] for the proposition that the principle does not apply to allow an inference to be drawn in the absence of supporting evidence. That proposition may be accepted: to draw an inference in favour of the plaintiff in circumstances where the plaintiff has failed to prove sufficient facts to demonstrate negligence, is in effect to reverse the onus of proof and place on the defendant the obligation of proving that it took reasonable care in the circumstances. It is significant that in Schellenberg, the other doctrine discussed was that of res ipsa loquitur, namely that negligence can be inferred from the fact of an accident because the occurrence, unexplained, is nevertheless of a kind which normally does not occur without negligence. Indeed, other members of the Court did not address Jones v Dunkel and the case was not one which was concerned with the credibility of the plaintiff.
In my view there is some substance in the plaintiff’s complaint with respect to the manner in which the trial judge dealt with the suggested reliance on Jones v Dunkel. On the other hand, to the extent that error is revealed, it was not a material error in the circumstances of the trial.
There is a danger, which is less likely to arise in the case of a jury trial, that a judge giving reasons for his or her conclusion will analyse the evidence in a manner which separates it into compartments. The danger is that some evidence will be considered in isolation and rejected as improbable, rather than being given some (albeit limited) weight, and placed into the balance prior to reaching a conclusion in relation to a critical fact. Accordingly, there may be cases where a trial judge will be in error in rejecting a plaintiff’s testimony as implausible or incredible and then concluding that there is “no evidence” from which the necessary inference can be drawn and therefore no consideration need be given to the failure of the defendant to call a witness in its camp, who might have contradicted the plaintiff. Thus, in the present case there was evidence of a defect in the vehicle; the question was whether the plaintiff’s evidence to that effect should be accepted. Given that he claimed to have reported the defect to the mechanic, if the defendant and the mechanic had come to Court together and were sitting in the courtroom, yet neither was called to give evidence, that fact could reasonably have influenced the judge’s decision as to whether or not to accept the description of the defect given by the plaintiff.
However, the hypothetical example indicates why the issue was not critical in the present case. First, it appears to have been known that both parties sought to subpoena the defendant himself, but were unsuccessful in bringing him to Court: Judgment, p9. Reference to the failure of attempts to find Mr Collins also appear at Tcpt, p103. Further, the plaintiff was asked in re-examination whether he had seen Mr Craig, Mr Pierce or Mr Collins at the Court and said that he had not: Tcpt, p90. However, it was not clear that Mr Collins could have given evidence of direct relevance, because the plaintiff did not say he had spoken to Mr Collins at any stage about the defect: indeed, he denied that he had. The witnesses of more direct relevance were the mechanic, Mr Pierce, and the office co-ordinator, Mr Craig. They were fellow workers, at the time of the accident and, if they had been available, there is no suggestion that they might not have been called by the plaintiff, who was, apparently, prepared to subpoena Mr Collins. Indeed, there was an absence of evidence as to whether they still worked for the defendant or his business or company. No explanation was given as to their absence, either by the plaintiff or the defendant. If it could be inferred that they were still in the employ of the defendant, an inference might have been drawn from the failure of the defendant to call them, but in all the circumstances little weight could be attached to such an inference.
Conclusions

The trial of this matter involved, in relation to liability, a confined factual issue. The plaintiff gave evidence of the defective step on the vehicle and of reporting the defect to the mechanic responsible for keeping the defendant’s vehicles in good repair. There was, however, no evidence corroborative of the defect or of the reporting. To succeed, the plaintiff had to be believed as to both matters.
There were significant reasons which would have allowed the trial judge to reject the plaintiff’s testimony. However, as noted above, there were also significant factual errors in the reasoning of the trial judge, on the basis of which he rejected the plaintiff’s evidence. Such factual errors would warrant the intervention of this Court, despite the fact that the case turned on findings of credit, if the errors were material.
In my view, the errors were sufficiently material to the findings on credit to require this Court to conclude that the trial miscarried in a significant respect. If the plaintiff did not have his case considered in accordance with proper process, the rejection of his claim can be seen to involve a substantial wrong or miscarriage of justice. Whether a retrial would give rise to a different result is not something which this Court can determine; it is for that reason that a retrial is necessary.
I would allow the appeal, set aside the judgment of the District Court in favour of the defendant and order that there be a retrial on all issues.
In relation to the costs of the trial, his Honour’s order that the plaintiff pay the defendant’s costs, made on 15 February 2006, should also be set aside. Those costs should abide the outcome of the retrial.
In relation to the costs of the appeal, the Respondent should pay the Appellant’s costs, but should have a certificate under the Suitors’ Fund Act 1951 (NSW), if not precluded by s 6(7).

**********

LAST UPDATED: 25 May 2007