RIVAROLA v SUNBEAM CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER JJA and KIRBY P 2 September 1992, 2 September 1992 [1992] NSWCA 210 EVIDENCE — missing witness — worker's compensation claim — injury disputed — failure by worker to call wife and daughter to confirm consequences of disputed injury — failure to call fellow worker — failure to call a contractor who worked at worker's home in week following alleged injury — failure to call local medical practitioner or masseur consulted by worker — reliance solely on testimony of worker not accepted by judge — hearing adjourned during trial — opportunity to call relevant evidence and failure to do so. HELD: (Meagher JA; Kirby P and Sheller JA concurring): The conclusion of the Compensation Court Judge (Egan CCJ) rejecting the claim was fully open in the evidence and could not be disturbed in an appeal limited to a point of law. Jones v Dunkel (1959) 101 CLR 298 applied Graves v United States 150 US 118 (1893) (USSC) referred to. WORKERS' COMPENSATION - appeal - point of law - stringency of - challenge to conclusions by trial judge on facts. HELD: No point of law. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) applied. Compensation Court Act 1984, s32. Workers' Compensation Act 1926. Meagher JA This is an appeal from a decision in the Compensation Court given by his Honour Judge Egan in relation to an accident which is alleged to have occurred on 7 October 1988. Mr Rivarola said, in regard to this accident, that he was driven away from work when he was in perfect health by a friend of his, Mr Cabrera, who dropped him at a kerbside close to his residence, but when he alighted from the car he slipped and fell, thereby injuring his right hip. He was then taken home by his daughter whom he had arranged to meet close to that position. It is common ground that Mr Rivarola attended work the following day; he took unpaid leave the following week and returned to work on 17 October. During that week certain cement laying was done at his home by a contractor called Mr Rigida. The case lasted two days in the Compensation Court. Right from the beginning it was made evident from the respondent's point of view that the happening of the accident on 7 October was very much in issue. There were a number of factors which would tend to indicate that the happening of the accident was doubtful. In any event, the applicant did not call either his wife or his daughter, both of whom would obviously have been in a position to describe his physical state of health before and after the evening of 7 October. His Honour made an adverse criticism of the fact that the applicant had not called his wife or daughter. Clearly as a matter of law his Honour was entitled to come to the conclusion that, when those persons were not called, he could assume that, if called, they could not say anything which assisted the applicant. Although a ground of appeal was originally taken because of his Honour's 2 UNREPORTED JUDGMENTS remark about the wife and child, that ground of appeal has been withdrawn; so one starts from the position that his Honour found against the applicant and one very substantial reason why his Honour did so was because the applicant's wife and child were not called. It is conceded that that was a perfectly valid comment by his Honour. His Honour, in addition, remarked that a number of people who might have given valuable evidence were also not called. One was the man who drove the applicant home, Mr Cabrera. Another was the workman, Mr Rigida, who worked at the applicant's home during the following week and whom one would have thought would probably have been able to say that he saw the applicant when the applicant was or was not in a state of pain. Again the written reports of Dr Rodriguez, who the applicant did see on 17 October, were ambiguous. On one possible reading they refer to a previous visit to a chiropractor. That ambiguity was never explained and the chiropractor never called. His Honour therefore said, in effect: bearing in mind that the applicant has the onus of proving that this incident occurred; bearing in mind it was signalled to the applicant right from the start that the occurrence of the incident was very much in issue, I find against the applicant, particularly as he did not call any one of a range of people who might have helped him if his version was true. I not only find no error in that approach, it seems to me in the circumstances an almost inevitable finding. There is a further difficulty and that is that, since we are confined to appeals on a point of law, there was in this case no point of law. It is a pure question of fact whether the incident did occur or did not, and his Honour came to the conclusion that it did not because it was not proved that it did, and that does not raise any point of law which we can consider. In my view, therefore, the appeal should be dismissed with costs. Kirby P I agree that the appeal should be dismissed with costs. I agree, for the reasons which Meagher JA has given that no point of law has been raised by the appeal. I am not obliged to determine whether the decision which the learned trial judge made was correct. It is enough, in this Court, for it to be said that, on the evidence which was called, and which was not called, and the inferences which were available to his Honour in the circumstances, the decision which he reached was properly open to him. In my view, it was. Thus, no error of law is indicated by his Honour's reasons. Therefore, this Court, conformably with its own stringent authority, is prohibited from intervening in the case, it being one of the residue of cases which is limited to an appeal on a point of law. Cf Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA). In his typically thorough presentation of the appellant's appeal, Mr Gross (for the appellant) referred to a number of important and interesting articles from United States law review and other sources. It appears that the principle which we know in this country as the rule of Jones v Dunkel (1959) 101 CLR 298 has its counterpart in the United States, expressed as long ago as 1893 in the Supreme Court in that country in Graves v United States 150 US 118 (1893). See now Herbert v Wal-Mart Stores, Inc 911 F 2d 1044 (Sth Cir 1990). The principle has been the subject of observations by scholars and jurists in the United States. There have also been criticisms of some of the formulations by the Courts. See RH Stier, "Revisiting the Missing Witness Inference" 44 Maryland LRev 137 (1985); JE McDonald, "Drawing an Inference from the Failure to Produce a URJ RIVAROLA v SUNBEAM CORPORATION LTD (Sheller JA) 3 Knowledgeable Witness" 61 Cal LRev 1422 (1973); and TA Tureau, "Herbert v Wal Mart Stores, Inc: The Death of the Uncalled Witness Rule" 37 Loyola LRev 387 (1991). The material provided by counsel is interesting. It will bear examination on a future occasion when the appeal is not limited as the present one is. However, in this case the failure of the worker to call his wife and daughter also gives rise to the common sense inference which the judge drew. That inference was certainly open to him. No appeal to overseas writing or scholarly criticism of the rule in Jones v Dunkel or its equivalents could help the worker in such circumstances. To the end, the failure to call the wife and daughter was unexplained. So was the failure to call other relevant witnesses. The inference which was drawn from such failures was certainly available to Egan CCJ. We cannot disturb his conclusions and the result which rested upon it. I therefore agree with the orders proposed. Sheller JA I agree, for the reasons given by the other members of the Court, that this appeal should be dismissed with costs. Kirby P: The order of the Court accordingly, is: The appeal is dismissed with costs. Counsel: Appellant: B Gross QC / P Semmler Respondent: M Neil QC / TM Wardell Solicitors: Appellant: Kencalo and Rimes Respondent: Hunt and Hunt