Moore v Goldhagen
[2023] VCC 238
•23 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-20-04944
| PETER JOHN MOORE | Plaintiff |
| v | |
| CLIVE GOLDHAGEN | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 to 25 March 2022; 28 to 31 March 2022; | |
DATE OF JUDGMENT: | 23 February 2023 | |
CASE MAY BE CITED AS: | Moore v Goldhagen | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 238 | |
REASONS FOR JUDGMENT
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Subject:Common Law
Catchwords: Transport accident; Passenger attempting to board bus; Factual
issues; Failure to call witnesses; Onus of proof
Legislation Cited:
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Bradshaw v McEwans Pty
Ltd HCA (Unreported delivered 27 April 1951); Richard Evans &
Co Ltd v Astley (1911) AC 674; Sednaoui v Amac Corrosion
Protection Pty Ltd [2017] VSCA 66
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S. Bailey with Ms A. Tate | Angela Sdrinis Legal |
| For the Defendant | Ms B. Myers KC with Mr D. Oldfield | Transport Accident Commission |
HIS HONOUR:
Introduction
1Peter Moore claims that he was struck by a bus he was intending to board in Warrigal Road, Moorabbin late on the evening of 8 September 2017. He was 56 years old at the time and had been out alone attending two music venues. He admitted to consuming a small amount of light beer during the evening.
2As a result of the incident he sustained some minor physical injuries, but more significant psychological injury. He alleges that the incident occurred as a result of the negligence of the bus driver, Mr Clive Goldhagen.
3The defendant denies that Mr Moore was struck by the bus as he alleges, and denies that the bus driver was negligent. The credit of Mr Moore, the nature and extent of any injuries suffered by him and the extent of his loss and damage were very much in issue.
4The case commenced before a jury, but ultimately proceeded as a cause due to COVID-19 issues.
5Apart from agreement that Mr Goldhagen had been the driver of the bus on the particular evening and the location of the bus stop, outside the Bunnings store on the south-eastern corner of the intersection of Bunnings Road and Cochranes Road, Moorabbin, very little was otherwise agreed.
6The reliability and credibility of Mr Moore were very much in issue in this case. He was the only witness who gave direct evidence about the happening of the incident. Mr Goldhagen, the only other witness who could have given evidence directly on this issue, was not called. Indeed, the defendant led no evidence in the trial.
7As with any other civil proceeding of this type, the plaintiff bears the burden of proof of the defendant’s negligence, the nature and extent of injury, causation and entitlement to damages before a judgment can be entered in his favour.
The evidence
8Mr Moore gave evidence over several days, and was cross-examined extensively. In addition to his own evidence two further witnesses were called on his behalf relevant to the question of liability.
9Additionally, his general practitioner, Dr Mirhom, his treating psychologist, Ms Astrinakis, a medico-legal psychiatrist, Dr Takyar and a former workmate, Mr Byrnes were also called to give evidence; none of these witnesses were directly relevant to the issue of liability.
10The first of the liability witnesses was Mr Peter Bergin, who had been driving the bus travelling behind the bus driven by Mr Goldhagen. Mr Bergin had picked up Mr Moore after the incident and driven him to the Mordialloc railway station where the bus service terminated.
11The other witness called by the plaintiff on the liability issue was Mr Stuart Roberts who was employed in September 2017 by Transdev, the then operator of the bus service. Mr Roberts was employed as a driver manager at the Heatherton depot. He had received a complaint concerning the incident and completed a case report, which was tendered into evidence.[1]
[1]Exhibit G
12Further evidence relevant to the circumstances of the incident was contained in a bundle of three photographs, which were marked by Mr Moore during his evidence.[2]
[2]Exhibits A & B
13This evidence disclosed nothing unusual about the bus stop itself, or indeed about the bus. The bus stop was located on a flat section of roadway, immediately to the east of the south bound carriageways in Warrigal Road. An area of the lawned nature strip abutting the eastern boundary of that roadway had been scalloped out to provide an area for the bus to exit the left lane of Warrigal Road and stop off the roadway to allow passengers to board or alight the vehicle.
14Slightly further to the east was a small bus shelter which, if being used by a passenger, would require that passenger to cross a concrete footpath and step down into the scalloped area where the bus was parked in order to board.
15In giving his evidence-in-chief Mr Moore described what had occurred on 8 September 2017. Mr Moore’s evidence was that he was waiting about five or 10 minutes at the bus stop for the bus to arrive. This was around 11.00 pm. He was not in the bus shelter but was basically leaning on the post which contained the bus timetable (“the totem pole”).[3]
[3]Transcript (“T”) 93, Line (“L”) 14 to T 94, L 1
16The photographs tendered as Exhibit A and marked by Mr Moore as Exhibit B, clearly show the totem pole on the footpath a short distance south of the southern end of the bus shelter and near the area within the scalloped bus stop where the front of the bus would ordinarily be expected to stop.
17Mr Moore gave evidence that he first saw the bus as it passed through the traffic lights at South Road, approximately 150 metres to his north. He believes he waved it down when it was probably only about 25 metres away. The bus then fully entered the bay. When the bus stopped he believed the back of the front door hinge was stopped in line with the totem pole. At that time Mr Moore was standing on the kerb.
18His evidence was that he waited where the doors were:
“… (they) didn’t seem to be opening, so I stepped off the kerb and I raised my right hand because he hadn’t opened the door and I struck the bus just behind the door.”[4]
[4]T 95, L 6-22
19In the course of his evidence-in-chief Mr Moore agreed that at the time the bus became stationary the rear of the bus was parked further out from the kerb than the front. He had marked photograph 3, forming part of Exhibit A, to show the position of the bus.[5]
[5]Exhibit B
20It was common ground that the bus being driven by Mr Goldhagen was not of an articulated type, but simply a normal service bus. It was also not in issue that there were no protrusions such as grab handles or external fixtures that would provide a simple explanation as to what Mr Moore then described occurring.
21Mr Moore’s evidence was that the bus had actually hit him. As Mr Goldhagen was manoeuvring the bus out of the bus stop to re-join the road the outside of Mr Moore’s right upper arm was struck by the bus just behind the front wheel which caused him to spin around and fall to the ground.[6]
[6]T 95, L 29 to T 98, L 15 & T 105, L 24 to T 106, L 23
22Mr Moore’s evidence was that he ended up on the ground facing south and watching the bus taillights disappear. He tried telephoning the police, but inadvertently rang another number which was not answered. He then sat down in the bus shelter and waited for the next bus. He believed he was too shaken up to consider pain:
“I can’t remember anything other than getting there, sitting in the bus stop and the bus arriving and approaching the driver and telling him what happened to the bus before him.”[7]
[7]T 107, L 17-23
23Mr Moore gave evidence that he had suffered a graze on his head above his right eye, a grazed right arm and a grazed knee. He had waited somewhere between 20 minutes and half an hour for the next bus to arrive. He spoke to the driver:
“I told him the guy in front of him, the bus in front, didn’t open the doors, didn’t let me on, knocked me down and took off.
… And I said he shouldn’t be on the road.”[8]
[8]T 108, L 19-22
24Mr Moore continued:
“I said I wanted him to report it to the bus company and he said, ‘You have to contact the TAC’, and that was it. He was not being very cooperative at all.”[9]
[9]T 108, L 14-28
25Mr Moore rode the bus to Centreway in Mordialloc and then went to a venue and got a coffee because he was feeling shaken up. He then went home. He took photographs of his injuries, which were tendered in evidence.[10]
[10]Exhibit C
26Mr Moore visited his usual general practitioner, Dr Mirhom, on the following day. Dr Mirhom told Mr Moore that he should report the incident to the police. He stated that he did report the matter, both to the police and the TAC. When asked about reporting it to the bus company directly he stated:
“I tried to ring up the company and say – to complain about the driver.”[11]
[11]T 112, L 8-10
27He could not recall whether he did in fact get in touch with anyone, although it is clear from Mr Roberts’ later evidence that a report was made.
28Before turning to evidence given in cross-examination by Mr Moore, it is appropriate to note the evidence that was given on the liability issue by both Mr Bergin and Mr Roberts.
29Peter Bergin had been driving buses for more than 24 years. In September 2017 he was employed by Transdev Melbourne which operated the Route 903 bus service between Mordialloc and Altona. On 8 September 2017 he was a PM shift driver, meaning that he was working afternoons and evenings.
30Mr Bergin remembered picking up the person he now knows to be Mr Moore at the bus stop at Cochranes Road and Warrigal Road, outside Bunnings. He identified the bus stop from the photographs, Exhibit A, and stated that this was not a typical bus stop:
“For the Route 903, most of the bus stops are on the road surface itself, the bus will be on the road in the lane fully, so this particular – this is really a old style kind of bus stop that was largely eliminated on most of the 903 before the Smart Bus route began.”[12]
[12]T 423, L 4-30
31Mr Bergin saw Mr Moore standing near the totem pole and pulled the bus into the bus stop to pick him up. He did not hesitate to pick up Mr Moore but stated:
“I did not hesitate but I was looking at him as he was looking directly at me. … I felt that – his eyes were very, very wide and I felt that he looked a bit wound up, a bit upset and I felt that when I opened the doors he might have something to say to me.”[13]
[13]T 424, L 11-21
32Mr Bergin gave evidence that he believed Mr Moore to be “a little bit unsteady on his feet, perhaps.” He observed Mr Moore take hold of the handrails which were located on the inside of the open doors:
“I think he was perhaps grabbing for those rails as he got on, rather than just sort of boarding without grabbing the rails.
… A lot of passengers do but they do it for support, you know, for whatever reason; but not everybody grabs the rails of the bus.
… I might have felt that his body perhaps wasn’t in line, that he may have swayed, possibly.
… I believe that he did sway. I wouldn’t say a huge sway but there was some leaning, if you like.”[14]
[14]T 424, L 29 to T 425, L 24
33When Mr Moore had boarded the bus Mr Bergin noted that he had cuts all over his face:
“I thought there were quite a number of cuts – not in one place on his face but in different places on his face.”[15]
[15]T 425, L 29-31
34Mr Bergin then described a somewhat robust conversation in which Mr Moore stated that the driver of the earlier bus shouldn’t be driving.
“… he said that he had attempted to board the bus ahead of me and that the driver had not opened the doors and that he tried to stop the bus from going and in the process – he said, ‘I tried to stop the bus from going and I fell over.’”[16]
[16]T 426, L 15-20
35Mr Bergin further stated that he was watching Mr Moore’s face and was concerned that he may drop blood on him. He stated that the blood appeared to be congealed and he asked Mr Moore to take a seat before driving off from the bus stop. Mr Bergin then confirmed that he had driven the bus and Mr Moore to the terminus at Mordialloc Station, or the bus stop at Mordialloc Centreway. Having completed that service he then drove the bus express to the Heatherton depot to finish his shift.
36He recalled having a conversation (at some point) with Mr Clive Goldhagen:
“I was joshing with Clive a bit because it something a bit unusual in our work, it doesn’t happen all the time, so I just was – I guess I was making a bit light of it and just mentioning the fact that I had picked this person up and that he wasn’t happy.”[17]
[17]T 427, L 27 to T 428, L 6
37Mr Bergin’s evidence continued:
“I remember Clive describing this person was at the bus stop but they were lurching, that they were very sort of unsteady on their feet and they were lurching about and that Clive had decided he didn’t want to have him on the bus because he was worried about this person’s condition and what their behaviour might be like on the bus.”[18]
[18]T 428, L 7-13
38Mr Bergin did not complete any incident report and believed that there were no supervisors at the depot at the time he arrived. There may have been incident report forms available, but he did not complete one as the incident had not taken place on his bus:
“… I guess a bit selfishly, I felt that it really wasn’t my matter and that I had spoken to the passenger about his situation. There was also another passenger on my bus who talked to him extensively about his problem and what he should do, so I guess I felt that he’d already been given direction as to where to take the matter.”[19]
[19]T 429, L 3-12
39Mr Bergin was unsure whether he had worked over the following weekend, but a short time later he was approached by Mr Stuart Roberts, who he described as the depot supervisor at that time.
40When cross-examined by Mr Oldfield, Mr Bergin agreed that he believed Mr Moore was unhappy that he had not been picked up:
“I felt he was upset that he’d been left behind and that Clive had driven the bus away from him and not picked him up.”[20]
[20]T 431, L 13-23
41He also believed Mr Moore smelt of alcohol and agreed with the proposition that it would be “fair to say he wasn’t sober when he got on the bus.”[21]
[21]T 431, L 24-29
42Mr Bergin also stated that after he had asked Mr Moore to take a seat on his bus, Mr Moore sat close to a mature-aged female passenger and Mr Bergin overheard Mr Moore conversing with her about his grievance. Mr Bergin was unable to remember specifically what was said. He also recalled Mr Moore on at least one, if not two further occasions, coming to speak to him at his driver’s seat, but sat down again when instructed to by Mr Bergin.
43When re-examined Mr Bergin confirmed that Mr Moore was still irritated when he alighted the bus at Mordialloc:
“I believe from what he had described to me that had happened to him at the Cochranes Road bus stop.”[22]
[22]T 435, L 11-18
44Mr Stuart Roberts was also called to give evidence on behalf of Mr Moore. At the time of the incident he was the driver manager at the Heatherton depot. He described his job at that time as handling the general day‑to‑day operations at the depot, including handling complaints, issues with drivers and making sure that everything was working as it should.
45He recalled being notified of the incident involving Mr Moore approximately two days after it had occurred.
46Mr Roberts was shown a three page report document which was tendered into evidence.[23] He stated that this was a document created by the company’s head office and sent to him for completion.
[23]Exhibit G
47Mr Roberts explained that it was his role to:
“Then do the research … try and work out which of the drivers it was, which bus it was.
… So we’d look at the shifts, which shifts aligned with the timings at that particular stop, which fleet members, which drivers and then go and talk to those drivers regarding the issue.”[24]
[24]T 634, L 29 to T 635, L 6
48Mr Roberts was taken to the body of the document and noted the summary provided to him contained the following:
“Customer stated the driver did not open the doors, turned away, drove off without collecting him but when the bus was leaving the stop, it hit him (customer) and knocked him over.”[25]
[25]T 635, L 21-24 & Exhibit G
49Mr Roberts took this complaint very seriously and had requested CCTV. He stated that this had been requested from another depot (Doncaster) where the bus had been located, but the CCTV was not forthcoming. He gave evidence of speaking to both drivers, Mr Bergin and Mr Goldhagen:
“There was a small situation regarding – the timing seemed to be a little bit off so originally it seemed to be Peter (Bergin) but it ended up being Clive (Goldhagen).”[26]
[26]T 636, L 12-16
50Mr Roberts gave evidence that both the buses driven by Mr Bergin and Mr Goldhagen had CCTV cameras fitted and the footage would be available for about two weeks. He stated that no CCTV footage had been received, and he did not recall what other attempts had been made to retrieve it.[27]
[27]T 640, L 20 to T 641, L 11
51Mr Roberts was again taken to the document and directed to the passage dealing with the driver’s response. This recorded a conversation with Mr Bergin noting:
“He spoke to Clive after the shift. Told him a man about 60 staggering at the stop, to increase his safety with a drunk on board. Clive set off again.”[28]
[28]T 641, L 14-17
52Mr Roberts was asked whether the bus company at that time had a policy as to when to refuse passengers entry to a bus:
“If somebody feels unsafe. There’s obviously so many different types of potential threats so it’s a question of establishing whether or not it seems rational and reasonable for the driver to leave a person behind.”[29]
[29]T 641, L 12-29
53He agreed that the safety of the person waiting at the stop was also relevant to the company’s policy:
“… but also balancing that against the safety of other passengers on board.”[30]
[30]T 641, L 30 to T 642, L 3
54Mr Roberts confirmed in evidence that he had actually spoken to Mr Goldhagen about two days after the event. His evidence as to that conversation was as follows:
“… he had pulled into the stop to pick up the person, the person had behaved in an aggressive manner towards the – outside the bus and then he had driven off again.”[31]
[31]T 643, L 26-31
55When further questioned about his conversation with Mr Goldhagen, Mr Roberts recalled the conversation as informing him that Mr Moore was acting aggressively:
“I think that was regarding banging on the bus, from memory and other actions I can’t recall exactly but it did appear sufficient at the time to satisfy me that he had reasons to leave the stop.”[32]
[32]T 644, L 24-29
56He denied being informed that Mr Moore had fallen:
“No, that would have prompted a completely different - that would have set off all the alarm bells. If he had fallen at the stop, that would have been seen as very serious.
… Because obviously, if that had been reported, obviously we would have probably pushed harder to get the CCTV, even though we obviously had difficulties at the time, but we would have pushed harder if we had known that it had been verified.”[33]
[33]T 644, L 19 to T 645, L 10
57He agreed that the description given by Mr Moore was that he had been hit by a bus:
“That was his claim, yes, but the likelihood of that seemed very, very low.”[34]
[34]T 649, L 3-6
58Mr Roberts agreed with a number of propositions put to him in cross‑examination concerning Mr Moore having fallen over in attempting to grab the bus as it was leaving, and that he had been told by Mr Goldhagen that he had seen Mr Moore stumbling around as he approached the bus stop.[35]
[35]T 650, L 2-13
59Mr Roberts confirmed that only rigid rather than articulated buses were operated on that route and stated that the particular stop where the incident occurred is:
“… a little bit different to a lot of stops in that the actual stop itself is quite a way back in the cutting. The bus comes out at a very, very shallow angle at that particular stop, so the concept of anybody getting hit there is doubly difficult. There is basically no possibility of tail swing and any other issues that may have involved somebody by the side of the road.”[36]
[36]T 651, L 17-26
60He described Mr Goldhagen as a “set and forget” kind of driver, stating that he did not recall any complaints ever coming through concerning him.[37]
[37]T 653, L 16-26
61Mr Roberts had taken no steps or actions to provide any additional training or counselling to Mr Goldhagen following this event.[38]
[38]T 654, L 10-13
62In re-examination Mr Roberts maintained that his evidence concerning Mr Moore having fallen over was not included in the report (Exhibit G):
“Well, we don’t know he fell over, he’s claimed that he’s fallen over and that’s what he’s reported to Peter.”[39]
[39]T 655, L 1-12
63He further gave evidence that the standard operating procedure for a driver was as follows:
“They check both mirrors – normally when you leave a bus stop, you check the left-hand mirror. They will check the doors, left-hand mirror, confirm that there’s nobody actually there and then he’s going to check his right‑hand mirror and then rejoin the traffic.”[40]
[40]T 655, L 13-26
64Finally in re-examination Mr Roberts stated that he could not specifically recall asking Mr Goldhagen whether he was well clear of Mr Moore when he drove off, but stated:
“… that would be something we would have touched on. That would be part of the normal sorts of questions that I would ask in that situation.
65He would not expect to record something like that “because it’s expected.”[41]
[41]T 656, L 30 to T 657, L 11
66The cross-examination of Mr Moore concerning the incident itself essentially confirmed the evidence-in-chief given by him. In particular:-
· He had probably waved the bus down when it was about 25 metres from the bus stop:
“Well, I was asked to put a distance on there and I was just assuming that that would have been the appropriate distance where I would have been waving it.”[42]
[42]T 342, L 25 to T 343, L 3
· When shown the marked photograph (Exhibit B), Mr Moore agreed that the bus was angled “it was sort of towards Bunnings – between Bunnings and a southerly direction (Warrigal Road).”[43]
[43]T 343, L 931
· The front doors of the bus were slightly ahead of the timetable post.[44]
[44]T 343, L 3-7
· Apart from raising his arm to flag the bus down, he did not move until after the bus had come to a stop.[45]
· After the bus had come to a stop he moved ,“I stepped off the kerb.”[46]
· Not only did he not move at the time the bus came into the bus stop, but he had barely consumed any alcohol. No person looking at him could have seen him staggering and appearing drunk.[47]
· The front of the bus, being the front door and the portion immediately in front of the door, was south of the timetable post, and was stopped pointing in a south easterly direction. (The front of the bus closer to the kerb than the rear)[48]
· After the bus had stopped, Mr Moore moved a distance of about a metre, or a bit more than a metre, moving to his left to approach the bus.[49]
· He then struck the bus just behind the door on its side, just once:
“That’s all I could because he took off.”[50]
· When this occurred Mr Moore was standing about an arm’s length away from the bus and was moving at that point as he tried to alert the driver to open the door.[51]
· He had hit the bus once with an open hand:
“… but it would have been like a tap, I’d imagine.”[52]
[45]T 344, L 21-25
[46]T 345, L 1-7
[47]T 345, L 8-17
[48]T 346, L 12-28
[49]T 347, L 18-30
[50]T 347, L 31 to T 348, L 2
[51]T 348, L 3-13
[52]T 348, L 28 to T 349, L 11
67Mr Moore maintained that the bus had taken off and struck him on his side. He agreed he may have been a bit closer to the bus than he had previously stated.[53]
[53]T 349, L 15-28
68Mr Moore agreed that the side of the bus was flat, but maintained that the bus had struck him:
“I mean, I think it’s fairly apparent the bus hit me. And how it actually occurred at that point I can’t divulge, I don’t know how that happened. I know what happened when I stepped off the kerb, I know I put my hand up to try and alert the driver and I didn’t measure how far my feet were or my arm was from the driver. I know I tried to alert the driver.”[54]
[54]T 350, L 5-15
69Ms Myers KC put to Mr Moore that the incident could not have possibly happened the way that he had described:
“Well, perhaps the driver drove into me. Either way, I was struck and knocked to the ground and suffered … as a result.”[55]
[55]T 350, L 16-22
70Mr Moore confirmed his earlier evidence that after being struck by the bus on the right side of his body:
“… it was a big impact and I spun and I ended up lying on my stomach on the road, looking – watching the tail-lights disappear.
… I can still picture the tail-lights disappearing down Warrigal Road.”[56]
[56]T 354, L 7-23
71He denied that he was drunk and staggering at the bus stop:
“No, I was not drunk. I’ve said that before and I repeat it. I was not drunk. I’d had two light beers. … 1.4 standard drinks.”[57]
[57]T 355, L 15-19
72Mr Moore denied making a grab for the bus as it was pulling away and simply falling over. He maintained that he had asked for the CCTV footage which wasn’t forthcoming.[58]
[58]T 355, L 22 to T 356, L 9
73Finally, Mr Moore was asked about passengers on the bus which had struck him. He believed there were no passengers on it:
“I looked in and I could see the driver, there was sufficient light to see the driver. I didn’t see anybody else on the bus.”[59]
[59]T 357, L 6-17
74Mr Moore was also cross-examined about what had occurred when he was picked up by the bus driven by Mr Bergin. He agreed that there may have been one passenger on that bus. He agreed he spoke to Mr Bergin, but did not believe he had spoken to anyone else:
“I told the driver the bus had hit me and I showed the driver the scars – the wounds that I had suffered and I said I wanted him to report it to the bus company. He said he didn’t know which depot the bus was from and he said a whole lot of stuff like that and he also said that I should contact the TAC if I wished to report it.”[60]
[60]T 357, L 18 to T 358, L 11
75Mr Moore specifically denied telling Mr Bergin that he had fallen over. He also denied the proposition that he had not told Mr Bergin that the bus had hit him or knocked him down.[61]
[61]T 358, L 12-23
76Mr Moore was further cross-examined about initial reports he had made of the incident to both Victoria Police and the Transport Accident Commission. Mr Moore was directed to a document titled “Incident Report” and apparently prepared by Senior Constable Ayoub at the Moorabbin Police Station. This document contained the following as a description of the incident:
“At approximately 2315 hrs the reporting person states that he was attempting to catch a 903 bus headed towards Mordialloc from the intersection of Warrigal Road and Cochranes Road in Moorabbin. The reporting person states that as he attempted to get on the bus that the driver looked at him, closed the doors and mounted the curb (sic) driving off towards Mordialloc. As a result the reporting person has received lacerations to the head and hands and states he is unable to sleep as a result of the trauma. The reporting person states that he was on his way home from a licenced premises in Cochranes Road and had consumed a small amount of light beer.”[62]
[62]Plaintiff’s Court Book (“PCB”) pp 112-115
77Mr Moore denied telling anybody that the driver had “mounted the kerb”:
“The driver entered the bus bay, which is beyond the kerb of the side of the road, I understand that, but I did not at any point say the bus mounted the kerb.”[63]
[63]T 359, L 1-23
78Mr Moore was then taken to a TAC Claim for Compensation Summary.[64] Mr Moore agreed that he had made a telephone report to the Transport Accident Commission either on the evening of the event occurring or the following morning. This had recorded the accident details as follows:
“I was looking at the bus timetable. The bus driver looked, mounted the kerb and drove off knocking me to the ground.”
[64]PCB 116-118
79Mr Moore again claimed this was incorrect:
“It did not mount the kerb at any point and I’ve always maintained that it didn’t mount the kerb and I don’t know where that came from.”[65]
[65]T 360, L 21 to T 362, L 14
80Notwithstanding the puttage of these prior inconsistent statements to Mr Moore, neither document was tendered in evidence, nor was Senior Constable Ayoub, who had been identified in the police report, called to give evidence by either party.
81Mr Moore gave some further evidence about the circumstances of the incident when re-examined. He was asked if there was any particular reason that he would have had to keep an arm’s length from the bus whilst walking up to it:
“No. The thing is, the arm’s length was along the side of the bus more so because I was trying to draw the attention of the driver, so I hit the side of the bus with my arm and it was – yeah, it would have been the length of my arm, but I was obviously closer to the bus than an arm’s length.”[66]
[66]T 412, L 17-31
82Mr Moore explained that his arm was on an angle whilst tapping the bus. He clarified his evidence to state that at the time he was tapping the bus he was probably about 20 to 30 centimetres from it.[67]
[67]T 412, L 17 to 413, L 16
83In re-examination Mr Moore also confirmed that he had made the report to the TAC by telephone. He stated he had not seen the report which had been the subject of cross-examination before coming to court.[68]
[68]T 413, L 26 to T 414, L 18
84There was extensive cross-examination of Mr Moore concerning the accuracy of the evidence he had given in relation to his personal relationships at or about the time of the incident, his long-standing problems with alcohol, his tragic past history involving childhood sexual abuse and also his activities following the September 2017 incident.
85It is unnecessary to canvass that evidence in any detail. Suffice it to say that Mr Moore’s reliability as an historian must be very seriously questioned given the contradictory evidence given in relation to these issues. It was clear that his recall of very significant events in his life was much less than would be expected from a person giving accurate and reliable evidence on matters essential to enable a court to confidently determine issues in dispute.
A resolution of the factual issues or simply a matter of guesswork?
86There is little doubt that an incident occurred at the bus stop on 8 September 2017. It is also clear that the evidence of Mr Bergin establishes that Mr Moore had suffered at least the superficial injuries to his face at the time he boarded Mr Bergin’s bus. Precisely what did occur at the bus stop and whether those events lead to a conclusion that Mr Goldhagen was negligent are matters in respect of which Mr Moore bears the burden of proof.
87The nature and extent of any psychological injury is a matter requiring determination only if the plaintiff proves that the events of 8 September 2017 lead to a conclusion that Mr Goldhagen was negligent and that his negligence was a cause of the relevant injury. Similarly, any entitlement to damages carries with it the same burden of proof.
88The case advanced on behalf of Mr Moore was put quite narrowly. It ultimately depends on an acceptance that he was struck by the bus and caused to fall to the ground.
89In final address Ms Bailey urged me to accept Mr Moore’s version of events. She submitted that his contemporaneous reporting of events was made not only to Mr Bergin, but also to the bus operator the following day and again to Mr Moore’s general practitioner, Dr Mirhom. Dr Mirhom’s clinical notes on 9 September 2017 recorded:
“Hit by bus 1/7.”[69]
[69]Exhibit J
90In relation to the report received by TAC which had made reference to the bus mounting the kerb, she submitted that this version of events had never been given by Mr Moore, nor had he seen the document, which in all probability was completed internally at the TAC. Similar reasoning should be applied to the Police report which also made reference to the bus mounting the kerb.
91Ms Bailey submitted that the multiple reports made by Mr Moore contemporaneously with the event occurring tended to support the scenario advanced by him, that is he had been struck by the bus. She submitted that whilst the defendant would argue that Mr Moore was upset and angry that he had been left behind by a bus causing him to wait an additional 20 to 30 minutes, the vigour with which he had pursued his complaint gave considerable support to his version of events being more likely correct.
92Ms Bailey additionally submitted that the failure of Mr Goldhagen to give evidence with no explanation as to why he was not called, should lead the court to conclude, in accordance with Jones v Dunkel[70] that Mr Goldhagen’s evidence would not have assisted the defendant’s case, and secondly, that where there was a conflict in the evidence, the court could more readily accept the conflicting version.
[70](1959) 101 CLR 298
93She additionally referred to Sednaoui v Amac Corrosion Protection Pty. Ltd.[71] submitting that the acceptance by TAC of Mr Moore’s claim for the payment of his medical expenses stood as a significant admission that the incident had occurred as Mr Moore had described.
[71] [2017] VSCA 66
94Ms Bailey then submitted that an acceptance of the plaintiff’s version of events would effectively prove negligence on behalf of the defendant as:
“… the driver must have known that he pulled into a bus stop and came to a stop, that potential passengers would approach, that they would walk right up to the door of the bus and that of course, they would expect the door to open for them to board.
However, instead of doing what was expected of him, the driver, the defendant drove off and at the time the defendant drove off, the plaintiff was far from being clear of the bus. On his own evidence, … he was about 20 to 30cm from the bus … tapping as a means of saying, ‘Let me in,’ as the bus actually takes off.”[72]
[72]T 722, L 13-26
95Ms Bailey referred to the evidence given by Mr Roberts as to the standard operating procedure requiring drivers to make sure the area was clear before pulling out of the bus stop.
96She submitted that the duty of a bus driver to take care when departing a bus stop would be heightened if the driver perceived a person waiting for the bus to be intoxicated or otherwise impaired:
“… a person would need to be even more careful to ensure that it was safe to operate or to move a vehicle when there was a drunk person in close proximity.”[73]
[73]T 725, L 17-20
97The submissions on behalf of the defendant in relation to the primary issue set out three matters essential to determining liability.
98First, the court would need to assess Mr Moore’s credit, both in terms of his truthfulness and whether his evidence can be considered reliable.
99Secondly, a determination would need to be made as to whether the plaintiff had proved on balance that he was struck by the bus in the manner alleged by him.
100Thirdly, the court would need to then determine whether in those circumstances the defendant had been proved negligent.
101The defendant submitted that Mr Moore had attempted to convey to the court that he was fit and in good health immediately prior to the incident.
102In particular the defendant submitted that Mr Moore had significantly underplayed his problems with alcohol prior to the accident, making no mention of many drink driving offences and admitting that he was drinking some 20 standard drinks a week before the accident, this amount said to have increased threefold after its occurrence.
103Ms Myers KC in final address referred to the evidence given by Mr Moore’s general practitioner, Dr Mirhom, noting that shortly prior to 9 September 2017 he was consuming around 42 standard drinks per week, vastly more than had been described by Mr Moore in his evidence‑in‑chief.
104Ms Myers KC also referred to drink driving offences occurring subsequent to the September 2017 incident. Mr Moore’s evidence of an incident occurring in July 2019 following a wake for his friend, revealed that he had a very high blood alcohol reading (some three times the legal limit) but stated his reason for driving, “I thought I was fine.”[74]
[74]T 130, L 29
105Ms Myers KC submitted that this event was indicative of Mr Moore’s inability to make any real judgment as to his own state of intoxication. She referred to members of the public observing him falling over his motor bike and reporting him to police.
106Mr Moore’s reliability as an historian was again challenged in relation to the evidence he had given about his relationship with his girlfriend, Marilyn. He had described being in a relationship with her “since just before the accident, and she’s been a great comfort.” He went on to describe activities with her:
“Before the bus accident? We would go to venues. Actually it was Mordialloc HQ where I met her.”[75]
[75]T 154, L 16-22
107He gave further evidence describing changes in his relationship with Marilyn since the accident:
“Well, the only real change is I’m less inclined to want to go and see her, I do it out of – I feel obliged.”[76]
[76]T 154, L 23-26
108When cross-examined about the relationship with Marilyn, Mr Moore firstly conceded that he did not remember whether she was his girlfriend prior to the September 2017 incident. He had previously stated that he had been going out with her for a month or two prior to its occurrence.[77]
[77]T 157, L 23 to T 160, L 25
109Mr Moore later accepted in cross-examination that he wasn’t actually with a girlfriend at the time of the accident.[78]
[78]T 164, L 11 to T 166, L 31
110Ms Myers KC also referred to Mr Moore’s evidence in relation to the impact of the childhood sexual abuse upon him. The history provided to the psychiatrist, Dr Takyar, who had been told that immediately prior to the bus incident Mr Moore was in good health, his mood was normal, his sleep was normal, he had normal concentration and memory and no anxiety. He was not unwell.[79]
[79]T 616, L 11 to T 617, L 6
111This history was contrasted with what had been recorded in Mr Moore’s statement to the Royal Commission.[80] In that statement Mr Moore had described the abuse leaving him with an inability to trust people, to move forward with career paths, and to maintain relationships. He reported that he had turned to alcohol to cope with the effects of the abuse and had been diagnosed with liver damage bordering on chlorosis. He noted in that statement that he had been depressed most of his life and was taking Prozac and Zoloft for years. He had said that he was on the disability support pension from approximately 1995 to 2004.
[80]Exhibit K & T 297
112Ms Myers KC also referred to the history recorded by the treating psychologist, Ms Astrinakis, who had recorded in her clinical notes that the effects of the childhood trauma had always been there, but had surfaced more following the Royal Commission leading him to drink as a means of self-medication.[81]
[81]T 553, L 22-25
113Ms Myers KC also made reference to the contradictory evidence given in relation to the post-incident activities. She submitted Mr Moore had clearly underplayed the extent of his activities, including travelling within Victoria and interstate on a number of occasions, and his ultimate acceptance that he must have met Marilyn at the Mordialloc HQ venue after the incident had occurred.[82] Mr Moore also agreed during cross-examination that he had continued to spend time with a friend, Darren Rogers, after the accident, including seeing him every couple of weeks, taking trips with him.[83]
[82]T 368, L 7
[83]T 143, L 1-11
114Ms Myers KC also made reference to the obvious conflicts between Mr Moore’s evidence of the manner in which the incident occurred and the evidence related by Mr Bergin and also what had been recorded in both the police statement and the TAC report. Mr Bergin’s evidence was that Mr Moore had told him on entering the bus that as the previous bus was driving away he attempted to somehow stop or grab the bus and had fallen over in the process.[84] He did not report to Mr Bergin that he had been hit or otherwise struck by the bus at any time.[85]
[84]T 431, L 23
[85]T 432, L1 to T 435, L 3
115The history recorded by both the police and the TAC made reference to the bus mounting the kerb. Notwithstanding the denial of any mention of this by Mr Moore, it was submitted on behalf of the defendant that such a history could only have been provided by him to be recorded by both the police and the TAC.
116Ms Myers KC submitted that the version of events related by Mr Moore led to a conclusion that he was reconstructing the events of the night during his evidence and had no real memory. She referred in particular to his response to puttage that the incident could not possibly have happened in the manner that he had described:
“Well perhaps the driver drove into me. Either way, I was struck and knocked to the ground and suffered as a result.”[86]
[86]T 350, L 17
117Ultimately Mr Moore’s case can only succeed if his version of events concerning the actions of Mr Goldhagen is accepted as proved on the balance of probabilities. The unexplained failure to lead evidence from Mr Goldhagen enlivens the inferential reasoning described in Jones v Dunkel.[87] The inferences that may be drawn are as follows:
(i)Where a witness expected to be called by one party is not called, and no explanation is provided, an inference is available that the evidence would not have assisted that party’s case.
(ii)The fact of the failure to call such a witness can be used by a court to more confidently accept the contrary proposition established by the evidence called by the opposing party.
[87](1959) 101 CLR 298
118It is not permissible to speculate as to what evidence might have been given in this case by Mr Goldhagen. Nor can his failure to give evidence be used to speculatively “fill the gaps” in the case advanced by Mr Moore.
119Some comment should be made in relation to the failure of the bus company to provide any CCTV footage which may have been of relevance. Mr Roberts, the driver manager at the Heatherton depot, was called to give evidence on behalf of Mr Moore. When taken to his recollection of events supplemented by the contents of Exhibit G, he agreed that he had requested the surveillance footage to be sent to him from another depot.
120What had then occurred is not explained by the evidence. It is purely a matter of speculation as to whether any CCTV footage actually existed at that time, or contained any material relevant to Mr Moore’s attempt to board the bus driven by Mr Goldhagen.
121No adverse inference could be drawn against Mr Goldhagen in relation to the surveillance material as the evidence clearly shows that this material was in the control of the bus company who was not sued as a defendant in this proceeding.
122Additionally, there was no evidence led from the police officer who had received Mr Moore’s initial complaint. Once again there is simply an absence of evidence as to what may have occurred as a result of any police investigation. I draw no inference adverse to the plaintiff from the failure to call this evidence, but simply note that the conduct of the case in this manner necessarily heightens the importance of the plaintiff’s evidence being accepted as the more probable version of events.
123There are, to my mind, many possible explanations as to what had occurred at that bus stop on 8 September 2017. The defendant submitted that the likelihood was that Mr Moore was affected by alcohol and his injuries probably occurred as a result of him trying to obtain entry to the bus and simply falling to the road. Perhaps he had simply fallen without making contact with the bus? Once again, this is purely speculative. Perhaps the bus had mounted the kerb and struck him? This version had been recorded in both the police statement and the statement recorded on behalf of the Transport Accident Commission. Mr Moore flatly denies he ever said it.
124Jones v Dunkel[88] concerned a road accident in which two trucks travelling in opposite directions had collided on a country road. One of the drivers had been killed; the other was not called to give evidence. The action had been brought by the widow of the fatally injured driver. The actual evidence led in the case was described by Kitto J as “meagre in the extreme”. Notwithstanding this finding, Kitto J, with whom Windeyer and Menzies JJ agreed, found that there was material from which a jury could legitimately conclude that the fatality had resulted from negligent conduct on behalf of the surviving driver. In giving the leading judgment on behalf of the majority of the High Court, Kitto J stated:
“The conclusion, it is true, could not have been reached save by inference from the facts concerning the road and the two vehicles, which were deposed to by the witnesses who came upon the scene shortly after the collision; and I agree that no ground for an inference is to be found in general considerations as to the likelihood of negligent conduct occurring in the conditions which existed at the time and place of the collision. One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”[89]
[88](1959) 101 CLR 298
[89]Ibid at 305
125The principle to be applied in such cases was described in an earlier decision of the court in Bradshaw v McEwans Pty Ltd.[90] The principle had been stated as follows:
“It is true that you only need circumstances raising a more probable inference in favour of what is alleged. But they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture.”
[90]HCA (Unreported delivered 27 April 1951)
126A similar statement had been referred to by Menzies J from Richard Evans & Co Ltd v Astley:[91]
“Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause ‘you only need circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture;’”[92]
[91](1911) AC 674
[92]Ibid at 687
127In my view the criticism directed at Mr Moore as a reliable witness is a valid one. He was cautious and probably evasive in relation to his past problems with alcohol, numerous road traffic offences, and further incidents involving motorcycles and bicycles which clearly involved excessive consumption of alcohol. His evidence about his activities, or lack of them, following 8 September 2017 was also misleading and unsatisfactory. His evidence concerning the impact of childhood sexual abuse upon his mental state in September 2017 is very much in conflict with his statement to the Royal Commission.[93]
[93] Exhibit K
128The history provided by Mr Moore to his treating psychologist, Ms Astrinakis from 25 September 2017 concerning his relationship breakdown with his earlier girlfriend, Karin, is in stark contrast with his evidence given initially when cross‑examined about this relationship, when he stated that they had mutually agreed to separate.[94]
[94] T 167, L 25 to T 168, L 20
129This level of inaccuracy by Mr Moore included him having no recollection of being taken to Sandringham Hospital with a fractured rib following a fall from a bicycle in August 2017. This fall was noted by his general practitioner, Dr Mirhom, as having occurred only a week after the relationship with Karin had ended.[95]
[95] T 329, L10 to T 331, L1
130Mr Moore initially suggested the hospital records might have related to another person with the same name. It was only when Dr Mirhom’s records were shown to him that he accepted it must have related to him. He still maintained his lack of recall of the event.
131Notwithstanding Ms Bailey’s submission that his contemporaneous reports of the events of 8 September 2017 should assist the court in more easily accepting his version of events, there are in fact two distinct versions of events contained in those contemporaneous statements.
132It is true that Mr Moore has denied ever stating that the bus mounted the kerb. Nevertheless, as submitted on behalf of the defendant, what other source could there have been for the recording of that matter by both the police and the TAC?
133An additional difficulty in accepting Mr Moore’s version of events arises from the conceptual difficulty of an accident actually happening in the manner described by Mr Moore. The bus stop was cut back into the footpath area on the eastern side of Warrigal Road. It had been scalloped at either end to enable a bus to smoothly enter into and drive out of the bus stop area. Mr Roberts had stated there was “basically no risk of tail swing[96]”
[96] T 651, L19-26
134The bus was not of an articulated design, nor was there any evidence to suggest that there were any external handles or other protrusions which might have struck a person who was standing beside the bus and banging on an area near the rear of the front door trying to attract the driver’s attention. Nothing in Mr Moore’s evidence could lead to a conclusion that he could not have been struck by any part of the front of the bus, that is forward of the front door.
135In leaving the stop the bus must have moved to its right, that is away from Mr Moore. His version of events, that the bus struck him in the area of the right shoulder and the right leg, spinning his right side forward and causing him to fall, is in my view most unlikely. Importantly, as Dixon CJ[97] had stated in Jones v Dunkel the particular version of events given by Mr Moore is just one of a number of competing conjectures.
“The law … does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”[98]
[97]Dixon CJ was in the minority in this case, but the statement of law extracted accords with the majority judgment
[98]Jones v Dunkel (1959) 101 CLR 298 at 305
136Mr Moore was an unsatisfactory witness. I am simply unable to be satisfied that his version of events is preferrable to any other of a number of explanations. In those circumstances I cannot be satisfied that he has proved any negligence on behalf of Mr Goldhagen.
137The proceeding must be dismissed.
138I propose to make formal orders dismissing the proceeding and ordering the plaintiff to pay the defendant’s costs, including reserved costs, to be assessed by the Costs Court on a standard basis in default of agreement.
139I reserve liberty to the parties to apply to the court in relation to the formal orders sought or the question of costs.
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