SREDOJEVIC v DIMIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA MEAGHER JA HANDLEY JA 4 October 1991, 4 October 1991 [1991] NSWCA 256 APPEAL AND NEW TRIAL — Positive finding by trial judge in favour of defendant based on credibility — Whether plaintiff on appeal established error by trial judge in reaching this conclusion. EVIDENCE — Available witness not called to corroborate defendant's evidence — Operation of Jones v Dunkel principle. held. A Court of Appeal will not interfere to order a new trial on the basis of minor errors of fact not going to the substance of the judge's finding on credibility. Failure by a party to call corroborating witnesses does not require a tribunal of fact to reject the uncorroborated evidence. Appeal dismissed with costs. Dearman v Dearman (1908) CLR 549 Jones v Dunkel (1959) 101 CLR 298 Handley JA This is an appeal by the plaintiff from a judgment for the defendant entered by Gallen DCJ in a motor vehicle case. The essential facts are that the appellant was crossing Johnston Street, Annandale on Sunday morning, 5 February 1984, when, as he alleges, he was struck on his right side and knocked to the ground by a car driven by the defendant which was reversing northwards in Johnston Street away from Parramatta Road. The appellant at the time said he was looking to the left and did not see the respondent's vehicle until he was hit. He fell first onto the boot and then onto the road. According to the appellant, the respondent and her husband both got out of the car and lifted him out of the gutter where he was lying and assisted him to sit on the footpath and later the respondent's husband helped him walk to his home, which was some two hundred metres away. The respondent's version of the events was somewhat different but there was much common ground. She said that she was reversing her car in Johnston Street close to the eastern kerb at a very slow speed, according to her, maybe five kilometres an hour. She had looked to the rear and then reversed for just one or two metres. She said "Then I heard first something bang, something was bump". She stopped the car and the appellant said her "You hit me". She recognised the appellant, as both were of Yugoslav origin and had formerly lived in the same street. However, according to the respondent, after the bump the appellant was still standing near the back of the car and had not been knocked to the ground. She got out of the car and had a short conversation with him and then drove off. According to her, the appellant walked home without any assistance from her husband. The husband was not called as a witness. The appellant alleged that he sustained significant injuries as a result of this accident. The trial judge said that he was unable to accept the plaintiff's evidence where it conflicted with that of the defendant and he accepted the defendant's evidence and found her to be a truthful witness. In particular he accepted her evidence that after the incident the appellant was not lying on the road but was still standing 2 UNREPORTED JUDGMENTS at the rear of the car. His Honour said "T am not satisfied, as I say, that the plaintiff was knocked to the ground." He said that if the plaintiff was bumped by the defendant's vehicle: "... the bump was of such a minor nature that it did not cause the plaintiff to fall to the ground or in fact cause him any damage." He also accepted the defendant's evidence that her husband had not helped the plaintiff to walk home after the accident. Clearly his Honour's findings were largely based on his assessment of the relative credibility of the plaintiff and the defendant and if there was nothing more to the case, it would be clear that this Court could not possibly interfere. The appellant however is able to rely upon some additional factors which, in the submission of Mr. Stone, his counsel, established sufficient errors in his Honour's reasons for judgment to entitle this Court to interfere with the inevitable result that there would have to be a new trial. The first of these errors is that the judge referred to the fact that the plaintiff did not call his local doctor, Dr. Hoboda, whom he had consulted three days after the incident. The appellant however relies on the fact that the trial judge did not refer to the respondent's failure to call her husband to corroborate her evidence that he had not assisted the plaintiff to walk home after the accident. The appellant submits that the trial judge thereby failed to give due weight to this fact and invokes the principle of Jones v Dunkel (1959) 101 CLR 298. I cannot possibly hold that the trial judge overlooked this principle which counsel then appearing for the appellant must have pressed on his Honour in support of his submission that the plaintiff's evidence should be accepted. The failure by a party to call an available witness is only one factor to be taken into account by a tribunal of fact in making its findings. It operates most strongly where a party fails to call any witness on some issue. It does not operate so strongly where a party calls one or more witnesses but fails to call another or others to corroborate its case. The trial judge was not bound to reject the defendant's evidence where it conflicted with that of the plaintiff simply because her husband was not called. In my opinion, in this respect the appellant has failed to establish any error in the reasoning of the trial judge. The appellant also relies upon the trial Judge's error in his reasons dealing with the evidence that the parties were known to each other before the accident. His Honour said: "It is significant, I believe, that the plaintiff when giving his evidence denied any acquaintance with Mr. and Mrs. Dimic other than a very casual possible acquaintance and did not acknowledge, as Mrs. Dimic later said in her evidence, that he had been in the Dimic's home on a number of occasions as a visitor." It is clear from a consideration of the whole of the relevant evidence that the respondent did not claim that the appellant had been a visitor in her home "on a number of occasions". The highest the evidence could be put was the respondent's answer "I think he was once", meaning that the plaintiff was once in her home. However the respondent had given other evidence of the prior association between the parties. She said, in answer to a question from the trial judge: "Q. Did you speak to him when you lived there any time? A. Oh yes, we go over there in night time and talk and chatting, you know, because usually they sit on the wall over there in the front of the flats wall and we used to sit there and talk and chatting." This evidence is open to the interpretation that the parties were reasonably well known to each other, and the trial judge was in a position of advantage to decide whether that was the proper interpretation. URJ SREDOUJEVIC v DIMIC (Handley JA) 3 Although therefore his Honour did fall into error in the manner I have indicated, the error in itself is not of a decisive or significant character. I will consider later in these reasons whether this error, such as it was, and other errors complained of, warrant interference by this Court. The appellant strongly relied upon what his counsel submitted was another error demonstrated in his Honour's findings in the following passage: "I am not satisfied, as I say, that the plaintiff was knocked to the ground and it appears to me that the evidence does not justify me in being satisfied that the plaintiff was in fact struck by Mrs. Dimic's car. There is of course the bump that she described and it appears that the plaintiff was bumped by Mrs. Dimic's vehicle. As I say, I am not satisfied that this did occur and if it did, I am of the opinion the bump was of such a minor nature that it did not cause the plaintiff to fall to the ground or in fact cause him any damage." The respondent's own evidence supported the conclusion that there had been some contact between her car and the plaintiffs body. I have already referred to her evidence that she heard something bang and that she experienced a bump. When she got out of the car and the plaintiff told her that she had hit him, she said in her evidence that she believed him. Moreover, her conduct in voluntarily going to the plaintiffs house the day after the accident to leave a statement of her name, address and her vehicle number, also indicates an admission on her part that she then believed that her vehicle had come into contact with the plaintiff's body and might have caused him some injury. Accordingly, there is substance in Mr. Stone's submission that the evidence was really all one way on this issue and it was a matter of common ground between the parties that there had been some contact between the defendant's car and the plaintiff, as I have described. His Honour said he was not satisfied that the car had "struck" the plaintiff. In so holding, his Honour may have only intended to indicate that he was not satisfied that such contact as had occurred was of sufficient force to warrant the description that the plaintiff had been struck by the car. His Honour's refusal to find that the plaintiff had been struck by Mrs. Dimic's car is a matter of some concern in the light of the evidence from Mrs. Dimic herself. However it is possible that his Honour only intended, as I have said, to find that there had been minimal force in the contract between the vehicle and the plaintiff such that it could not fairly be described as a vehicle striking the plaintiff. It is also possible that his Honour thought that the plaintiff may have hit the boot of the car with the palm of his hand to signal to Mrs. Dimic that she should stop reversing and that what Mrs. Dimic heard and felt was only the plaintiff hitting the boot of the car in this way. For these reasons I am not satisfied that his Honour's refusal to be satisfied that the plaintiff was struck by Mrs. Dimic's car is an error of any kind. This conclusion then leaves the appellant with only one established error, namely the statement that the plaintiff had visited Mrs. Dimic's home on a number of occasions. In my opinion this mistake, and mistakes of this kind do not establish error on the part of the trial judge entitling this Court to interfere and order a new trial. As was said in Dearman v Dearman (1908) CLR 549 at 553 by Griffith CJ: "But if the tribunal of first instance, having seen and heard the witnesses, comes to a conclusion in favour of the party upon whom the burden of proof does not lie, it is almost hopeless to try to induce a Court of Appeal to interfere with that finding unless it has clearly proceeded upon a wrong principle." 4 UNREPORTED JUDGMENTS In the present case the trial judge not only was not satisfied with the evidence of the plaintiff and unable to accept it, but he went further and accepted the evidence of Mrs. Dimic, the defendant. This positive finding in favour of the defendant's case indicates that the defendant discharged the civil onus, which of course she did not bear, of establishing that the plaintiff had not made out a case for relief. It would not be sufficient merely to establish some error in reaching this conclusion. The plaintiff would have to go further and show that the trial judge should have found that the onus had been discharged by the plaintiff. For the reasons given by Griffith CJ and in the light of the earlier discussion of his Honour's reasons for judgment, I am of the opinion that the plaintiff has failed to discharge that onus in this case and that the appeal should be dismissed with costs. Clarke JA I agree. In my opinion it is clear that his Honour rejected the evidence of the appellant. In that situation it seems clear also that his Honour was left in considerable doubt as to what exactly did occur on the occasion in question. In those circumstances he expressed a conclusion that he was not satisfied that a bump had occurred. I think the real gravaman of the judgment is that even if one had occurred, the trial judge was not persuaded that any damage was thereby caused. This is an approach which is not, in my view, an erroneous one and no reason has been given, as Mr. Justice Handley has made clear, which justifies this Court in reversing the trail judge's judgment. Meagher JA I agree. The order of the Court is that the appeal should be dismissed with costs. COUNSEL for the Appellant: P STONE Counsel for the Respondent: J GUIHOT SOLICITORS for the Appellant: RG COSHOTT and ASSOCIATES Solicitors for the Respondent: SOLICITOR FOR THE GIO