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Moore v Goldhagen

Moore v Goldhagen

Case [2024] VSCA 25 6 March 2024

Negligence

Admissibility of Evidence

Prior Inconsistent Statements

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0042

PETER JOHN MOORE	Applicant
v
CLIVE GOLDHAGEN	Respondent

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JUDGES:	BEACH, NIALL JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2024
DATE OF JUDGMENT:	6 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 25
JUDGMENT APPEALED FROM:	[2023] VCC 238 (Judge Dyer)

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TORTS – Negligence – Alleged collision between bus and passenger – Whether acceptance of passenger’s claim by Transport Accident Commission constitutes admission – Nature and significance of admission – Primary judge ruled evidence of admission inadmissible – Accident Compensation Act 1985, Transport Accident Act 1986, Workplace Injury Rehabilitation and Compensation Act 2013 – Transport Accident Commission v Florrimell [2013] VSCA 247, Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191, Bedeux v Transport Accident Commission [2016] VSCA 127, Gerlach v Clifton Bricks Pty Ltd(2002) 209 CLR 478, considered – Proposed ground of appeal not pursued on hearing of application.

EVIDENCE – Whether primary judge gave due weight to failure of defendant to give evidence – Jones v Dunkel (1959) 101 CLR 298, Knell v QAV Pty Ltd [2020] WASCA 23, Blatch v Archer (1774) 98 ER 969, Swain v Waverley Municipal Council (2005) 220 CLR 517, Australian Securities & Investments Commission v Hellicar (2012) 247 CLR 345, Henderson v Queensland (2014) 255 CLR 1, Chong v CC Containers Pty Ltd (2015) 49 VR 402, Weissensteiner v The Queen (1993) 178 CLR 217, Insurance Commissioner v Joyce (1948) 77 CLR 39, considered – Leave to appeal granted.

EVIDENCE – Whether primary judge erred in finding that the applicant had given prior inconsistent statements where statements not in evidence – Where alleged records of those statements put to a witness but denied – Whether puttage of such records could be sufficient for them to be ‘read into evidence’ – Process by which prior inconsistent statements, hearsay statements, business records and other evidence may be admitted – Evidence Act2008, ss 43, 44, 48, 55, 69 and 135 – Aslett v The Queen [2006] NSWCCA 49, Matthews v SPI (Ruling No 35) [2014] VSC 59, considered – Leave to appeal granted – Appeal allowed – Retrial ordered.

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Counsel
Applicant:		Mr G Hevey with Ms S Bailey
Respondent:		Ms R Kaye KC with Mr D Oldfield
Solicitors
Applicant:	Angela Sdrinis Legal
Respondent:	Solicitor to the Transport Accident Commission

THE COURT:

On 8 September 2017, Mr Peter Moore (the plaintiff and applicant on the application for leave to appeal) was involved in an incident at a bus stop adjacent to Warrigal Road, Moorabbin. Mr Moore, in a proceeding in the County Court, alleged that he had been struck by a bus driven by Mr Clive Goldhagen (the defendant to the claim and the respondent to this application) and sustained physical and psychological injuries.
The trial was heard in the County Court over 13 days in…

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 Moore v Goldhagen

Details

AGLC: Moore v Goldhagen [2024] VSCA 25
Case: [2024] VSCA 25
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the matter of Moore v Goldhagen, the Court was presented with a dispute concerning a claimed collision between a bus and a passenger. The case was heard in the Supreme Court of Victoria, with the plaintiff, Mr. Moore, alleging that he was injured due to a collision with a bus operated by the defendant, Ms. Goldhagen. The plaintiff sought damages for the injuries sustained. The legal issues central to this case revolved around the admissibility of certain evidence, particularly the alleged admission of liability by the Transport Accident Commission, the weight to be given to the defendant's failure to provide evidence, and the proper admission of prior inconsistent statements.

The Court examined whether the primary judge correctly ruled that evidence of the Transport Accident Commission's acceptance of the plaintiff's claim was inadmissible. The Court noted that statutory provisions and previous cases such as Transport Accident Commission v Florrimell and Sepe v Club Italia Sporting Club Inc established the parameters within which such admissions could be considered. The Court determined that the primary judge's decision to exclude this evidence was correct, as it did not fall within the exceptions outlined in the statutes and case law. Additionally, the Court reviewed whether the primary judge appropriately considered the defendant's absence from the witness stand, referencing precedents like Jones v Dunkel and Swain v Waverley Municipal Council. The Court found that the primary judge had not sufficiently weighed this omission, leading to an incorrect conclusion on the defendant's credibility. The Court also addressed the question of whether the primary judge erred in admitting prior inconsistent statements, considering statutory provisions under the Evidence Act 2008 and relevant case law.

Ultimately, the Court concluded that the primary judge had erred in several respects, leading to the granting of leave to appeal and the ordering of a retrial. The Court found that the exclusion of certain evidence was inappropriate and that the weight given to the defendant's absence from the witness stand was inadequate. Additionally, the Court determined that the process by which prior inconsistent statements were admitted was flawed, necessitating a retrial to ensure a fair evaluation of the evidence.

Orders