Widera v Reid - [2002] ACTCA 3

STANISLAW JOHN WIDERA v PHILLIP JOHN REID [2002] ACTCA 3 (30 August 2002)

CATCHWORDS

APPEAL – verdict for defendant – Master failing to accept version of appellant – whether Jones v Dunkel inference drawn – whether advantage of assessing parties in witness box misused.

Devries v Australian National Railways Commission (1993) 177 CLR
Rosenberg v Percival (2001) 205 CLR 434
Jones v Dunkel (1959) 101 CLR 298
O’Donnell v Reichard [1975] VR 916
Bandi v Mingot (1976) 12 ALR 551
Ho v Powell (2001) 51 NSWLR 572

APPEAL FROM THE MASTER

No. ACTCA 2 of 2002

Judges: Miles CJ, Crispin P and Higgins J
Court of Appeal of the ACT
Date: 30 August 2002

IN THE SUPREME COURT OF THE       )
  )          No. ACTCA 2 of 2002
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:STANISLAW JOHN WIDERA
Appellant

AND:PHILLIP JOHN REID
Respondent

ORDER

Judges:  Miles CJ, Crispin P and Higgins J
Date:  30 August 2002
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be dismissed; and

the appellant pay the respondent’s costs.

IN THE SUPREME COURT OF THE       )
  )          No. ACTCA 2 of 2002
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:STANISLAW JOHN WIDERA
Appellant

AND:PHILLIP JOHN REID
Respondent

Judges:  Miles CJ, Crispin P and Higgins J
Date:  30 August 2002
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from a decision of the Master dismissing a claim for personal injuries sustained on 17 November 1997 when the plaintiff/appellant was struck by a motor vehicle driven by the defendant/respondent.

It was common ground that the appellant had been struck by the respondent’s vehicle and that he had sustained a fracture to his left fibula, some dental injuries and lacerations as a consequence. However, the Master was not satisfied that the appellant had established that those injuries were properly attributable to any breach of a duty of care by the respondent.

As the Master observed, the evidence of the appellant and respondent had provided two dramatically different versions of the incident in question.

The appellant said that on the evening in question he had attended the home of Ms Towne, with whom he had had a de facto relationship, and that they had put the children to bed, enjoyed a late supper during which he consumed three small glasses of wine and had a “perfectly friendly, happy evening”. At about 10.00 or 10.30 pm he heard the sound of a vehicle being driven onto an area of the front lawn where he and Ms Towne had earlier been gardening. He responded by turning on the light and opening the front door to see who it was. He saw a Volkswagon Kombi utility (“VW”) do “a big wheelie across the lawn”. He then walked to the kerb in an attempt to read the number plate. He described the accident in evocative terms: “he took off, done a wheelie across the road and then he’s gone for me and then I’ve ducked me head and he’s hit me head and I’ve…

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 Widera v Reid

Details

AGLC: Widera v Reid [2002] ACTCA 3
Case: [2002] ACTCA 3
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the Court of Appeal of the ACT from a decision of the Master, who had dismissed the appellant’s claim for personal injuries. The appellant had been struck by a motor vehicle driven by the respondent, sustaining a fractured fibula, dental injuries, and lacerations. While it was agreed that the appellant was injured by the respondent's vehicle, the central dispute revolved around the circumstances of the incident and whether the respondent had breached a duty of care owed to the appellant. The Master found that the appellant had not established that his injuries were attributable to any breach of duty by the respondent, preferring the respondent's version of events.

The legal issues before the Court of Appeal included whether the Master had failed to properly use or had misused his advantage in assessing the credibility of the parties as witnesses, particularly in light of a prior inconsistent statement made by the respondent. The court also considered whether the Master had erred in applying the principle from *Jones v Dunkel* regarding the failure of Ms Towne to give evidence, and whether the Master’s findings regarding the appellant’s knowledge of the respondent and the circumstances of the incident were reasonably open to him on the evidence. The appellant argued that the Master’s preference for the respondent’s version was not supported by the evidence and that certain inferences drawn by the Master were improper.

The Court of Appeal dismissed the appeal, finding that the Master had not misused his advantage in assessing the witnesses. The court noted that the appellant bore the onus of proving his case and that the Master’s inability to fully accept the respondent’s evidence did not necessitate accepting the appellant’s version. The Master’s reliance on ambulance and hospital records, alongside his assessment of credibility, provided a sufficient basis for his findings. Regarding the *Jones v Dunkel* principle, the court found that the Master’s comments about Ms Towne’s absence were intended to explain why he was not drawing adverse inferences, rather than indicating that he had done so. The court also found that the Master’s inferences regarding the appellant’s knowledge of the respondent and the circumstances of the incident, including the appellant running onto the road, were reasonably open to him on the evidence presented. The court concluded that the Master’s conclusions were open to him on the evidence and that no error had been made.

Orders