BOOTLE v KETTLEWELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and POWELL JJA 18 October 1993, 25 November 1993 [1993] NSWCA 30 MOTOR VEHICLE ACCIDENT — WHO WAS DRIVER? — ADVANTAGE OF TRIAL JUDGE SEEING WITNESSES — WHETHER APPEAL COURT MAY COME TO DIFFERENT CONCLUSION — INFERENCE TO BE DRAWN FROM NOT CALLING DEFENDANT WHO WAS CLAIMED BY PLAINTIFF TO BE DRIVER AFTER PREVIOUSLY SAYING HE WAS PASSENGER — PROCEEDING CONDUCTED BY INSURER — JONES v DUNKEL INFERENCE APPEAL FROM DISTRICT COURT — Motor vehicle accident — Who was driver? — Plaintiff told police and others she was driver — Later claimed she was not driver — Judge accepted plaintiff's evidence — Held: Plaintiff was driver — Appeal upheld. ADVANTAGE OF TRIAL JUDGE SEEING WITNESSES — Whether Appeal Court may come to different conclusion. INFERENCE TO BE DRAWN FROM NOT CALLING DEFENDANT — Defendant claimed by plaintiff to have been the driver — Had previously said he was passenger — Proceeding conducted by Insurer — Jones v Dunkel inference. Mahoney JA On 15 December 1980 Miss Maureen Kettlewell was involved in a serious motor vehicle accident at Geurie near Dubbo. She was injured. She sued the defendants claiming damages on the basis that Mr Malcolm Bootle was the driver of the vehicle at the time and that the accident was due to his negligence. On 27 March 1992 McDevitt DCJ found a verdict for the plaintiff and awarded damages of $44,487.36. The defendants have appealed to this Court against that judgment. Miss Kettlewell's case depends upon her claim, made in evidence before the judge, that at the time of the accident Mr Bootle was driving the car. The case for the defendant has been conducted by the Government Insurance Office of New South Wales as the defendants' third party insurer. As was proper under the existing law, Miss Kettlewell sued the defendants as respectively driver and owners of the vehicle. Mr Malcolm Bootle was, at the time of the accident, the "boyfriend" of Miss Kettlewell and, as the evidence discloses, they became parents together of a child. They did not marry and have not been in their previous relationship for at least a substantial time. However, their relationship is, it has been suggested, relevant in the understanding of what happened and in deciding what inferences are to be drawn from the evidence. As the competing claims in this appeal may on one view affect the credibility of Miss Kettlewell or more, I shall summarise the evidence given by the witnesses at the trial, examine the judge's conclusion in favour of Miss Kettlewell and his reasons for that conclusion, and then indicate the conclusions which I myself have formed. 1. THE EVIDENCE: 2 UNREPORTED JUDGMENTS The accident resulted from the vehicle in question being driven into the structure of a bridge on the left hand side of the road. It was accepted at the trial that the driver at the time was guilty of negligence. At the time only two persons were in the vehicle, Miss Kettlewell and Mr Malcolm Bootle. The judge held that Mr Malcolm Bootle was the driver. The plaintiff Miss Kettlewell, in her evidence at the trial, said that at the time she was sleeping in the front passenger's seat. His Honour summarised her evidence as follows: "She says in evidence that, having changed drivers near Wellington, so that the defendant Malcolm Bootle was driving she put her head on the console in a Leyland P76 and slept. She had left Parramatta in the same vehicle with Bootle the previous night sometime after 9 pm and she had been the driver. Both were returning to Dubbo from a wedding in Sydney. No alcohol had been served at the wedding reception, but some beer may have been consumed at the house of a friend whom they had agreed to drive home to Parramatta. She says that they drank no more than two cans of beer before beginning their journey. She says that having handed over the driving to Mr Bootle near Wellington, and having gone to sleep while she was sitting in the front passenger's seat with her head resting on the console between the two front bucket seats, she awoke and saw a guard rail going over her head. It had gone through the car at Geurie Bridge. The guard rail had gone through the windscreen on the passenger's side. She says that she saw the driver's door was open and the defendant Malcolm Bootle was outside and yelling to a passing car to get an ambulance. She also said she heard a hissing noise. She says she remembers the ambulance man lifting her out of the vehicle through the driver's door and she says she remembers saying 'I've got to get out - That's it'. Her evidence then was that she doesn't remember how the ambulance officer removed her from the car, but she can remember putting her arms around his neck as he was lifting her out. She says she does not remember being admitted to the Dubbo Base Hospital but she does remember Malcolm Bootle being in the same ward. She does remember hospital staff stitching up wounds to her face, and she remembers that on that day X-rays were taken of her face, hands, ribs and left leg. She says that her injuries included broken front teeth on the upper jaw, a hole in her chin which extended right through the thickness of the flesh into the inside of her mouth and numbness to her face and jaw. She says she filled out a form at the hospital for a social worker but answered only 'hospital questions'. The plaintiff was faced with three things: that at the time she had told the police officer at the scene of the accident that she was the driver; that she had told the ambulance officer who attended the scene of the accident the same thing; and that the records of the hospital at which she was treated recorded her as being the driver. It was not, I think, seriously contested - at least, there can be no doubt - that at the scene of the accident Miss Kettlewell told the police officer, then Senior Constable Edwards, that she was the driver. He recorded the fact on the form which he filled out in relation to the accident at the time or shortly afterwards. In addition, the officer had a particular recollection of what had taken place, notwithstanding the time which had elapsed: it was not, I think, suggested that his evidence in that regard was wrong. He recalled specifically that he "asked her whether she was driving the motor vehicle or not and she said yes she was". She was then seated in the driver's seat of the vehicle. He asked her further questions and she told him "she hit the steering wheel" and had suffered injuries because of it. The officer added: URJ BOOTLE v KETTLEWELL (Mahoney JA) 3 "To my memory the passenger's side was all smashed in. It was my belief if anyone had been in the passenger's side they'd have been killed or injured." In cross-examination he said that she did not appear in a dazed condition, "she seemed to be talking all right to me", although "she could have some form of shock". The officer was asked by counsel for the plaintiff and gave an account of his conversation at the scene with Mr Bootle. He said that Mr Bootle told him that "he was asleep on the back seat of the car' at the time and that it was Miss Kettlewell who was the driver of the vehicle. Miss Kettlewell was discharged from hospital on 20 December 1980. The police officer went to her home on 28 December 1980. The plaintiff said that on that occasion she had told him that she did not remember speaking to him at the scene of the accident or telling him that she was the driver and that he had said, "Are you covering up for Malcolm because of two prior DUI charges?". She said she denied it. The police officer gave a different account of that conversation. He said: "I asked her could she tell me anything about the motor vehicle accident and she said there was nothing else she could tell me about it and she was in a position where she did not want to answer any of my questions". The officer, on being cross-examined for Miss Kettlewell, said that he had called upon her because "I had to have her version in what she felt happened in relation to the accident". He was asked whether he had "delayed getting a statement from this lady at the scene of the accident because you knew she was so injured she could not give you an accurate or reliable version of what happened" and he replied, "That's not totally correct, no". He said: "She was suffering from injuries and I was in a position where it didn't really matter one way or the other, she was going to go to hospital and I could have got a version off her, two days, two weeks later, whatever it might have been. I'm not in a habit of pushing people just to get statements when they're in that position of having an accident." When pressed, he denied that it was "necessary" to postpone getting a statement because of her condition. He said: "The lady was there and I was talking to her about a few little different things about her injuries and what might have happened and so forth and the ambulance came along, there was no great need to be rushing in and grabbing statements off her, sort of trying to terrorise her in what might have happened. When pressed further about the matter, the officer said: "Q. So as far as your version was concerned you were quite happy with the information you got from Mr Bootle at the scene of the accident but you wanted to leave some time before you got complete information from her? A. I was quite happy with referring (sic) that was rendered to me at the scene of the accident and was just happy to just leave a version of Miss Kettlewell because the physical evidence at the scene of the accident led me to believe that what happened that Miss Kettlewell was driving, Bootle was asleep in the back seat as he tells me, and it just a simple cut-and-dried accident on the basis of it and that's all it was. Q. Relying on the version initially given to you by Mr Bootle? A. And Miss Kettlewell. HIS HONOUR: Q. What else did you not find out from Miss Kettlewell the second time? 4 UNREPORTED JUDGMENTS A. Sir as I said, the conversation went along the lines of how she received the injury at the scene when I was tending to her and how the accident happened. Well she didn't clarify to me how the accident happened. I believe I put it to her she might have gone to sleep and that's how the accident happened but I didn't pursue that point, the ambulance arrived and I thought I have got to clarify that point. As our learned friend suggested there could have been a negligent driving out of it, again there mightn't have been. I had to clarify that point before I sent away the documents." Miss Kettlewell also told Mr Wilkes, the ambulance officer who attended the scene of the accident, that she was the driver of the car at the time of the accident. Mr Wilkes conceded that he had no independent recollection of the incident apart, "virtually", from the documents that he prepared at the time although he could remember "the car being up against the guard rail but apart from that no". However, based upon what he had noted in the documents at the time and his practice in dealing with such cases, his evidence was that she had been the driver, that the car had left the road, that she had been wearing a seatbelt at the time, and that she was suffering from injuries which Mr Wilkes described as "seatbelt syndrome". Those injuries were the kind caused by the belt digging into the body and bruising or fracturing the ribs and causing pain in the thoracic region. He had noted that she was "affected by shock" but she "seemed to be quite lucid" and answered his questions "immediately without humming or harring - in other words answered in a sensible manner". He inferred that, when questioned, she had been sitting in the driver's seat of the car. Mr Wilkes also questioned Mr Malcolm Bootle and his record of what was said was admitted into evidence. Mr Bootle's account was to the effect that it was Miss Kettlewell and not him who was the driver of the car. Mr Wilkes thought that he had made out the reports in respect of each person at the scene of the accident although he conceded it was possible they were made out at the hospital. He explained in detail why he said that Miss Kettlewell and not Mr Bootle was the driver and was emphatic that he did not merely assume what he recorded in the document. In the course of his evidence, he was pressed, in cross-examination, in relation to matters of detail. He had, as I have said, recorded towards the commencement of the cross-examination that he had no independent recollection "except what is in these two documents". But he particularised several matters that were said and done. Some at least of these were based on the practice which he said was followed. But it may be that his recollection was stimulated by what had been put to him: for example, he appears to have agreed with the judge that "you have a reasonably clear recollection of the scene when you arrived...". The records of the Dubbo Base Hospital relating to Miss Kettlewell and Mr Bootle were admitted into evidence. Those in relation to Mr Bootle recorded that he was a passenger in the car, those in relation to Miss Kettlewell that she was the driver. There was no direct evidence as to the source from which the information came which was recorded on those records. However, in two places, a statement was recorded that she was the driver. Ordinarily, it would, I think, be inferred that what was recorded on the medical records was what was told to the medical attendant by Miss Kettlewell and Mr Bootle. Reference was made during the hearing before this Court as to the basis on which the material in the documentary evidence was admitted as evidence in the proceeding and the inferences which could be drawn from them. No objection is URJ BOOTLE v KETTLEWELL (Mahoney JA) 5 now taken to their having been admitted into evidence or their being used. I do not think that it is necessary to pursue the detail of this matter. No doubt the admission into evidence of a particular statement does not, without more, entitle the court to give to the statement an evidentiary force greater than intrinsically it should bear. A statement which is in form hearsay ("I heard X say Y'') is in principle not evidence that Y is the fact. The statements by Miss Kettlewell are admissible as evidence she was the driver as admissions by her against her interest. The statements by Mr Bootle that he was not the driver are not, in principle, admissible of the fact against Miss Kettlewell. But such material was, to an extent, brought out in cross-examination for Miss Kettlewell and appear to have been treated at the hearing as evidence of the fact. However, it is not necessary to rely upon the special circumstances affecting such evidence. It is enough to rely on what was said and done by and for Miss Kettlewell. See generally Hughes v National Executors, Trustees and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 153. (In that case, an attempt was made at first instance to even the evidentiary balance by treating statements made by a deceased testator as evidence of the truth of them. The attempt failed). Subject to what I shall say, it is in my opinion clear from the portions of the documents admissible against Miss Kettlewell that she told the police officer, the ambulance officer and the medical staff that at the time she was the driver of the vehicle. Insofar as it is relevant and use may be made of it, Mr Bootle told such persons that, at the time, he was a passenger. One further matter is to be noted. It is accepted that Mr Malcolm Bootle was in court during the hearing of the proceeding and was available to give evidence. He did not enter the witness box. There was positive evidence before the court that the defendants were insured by the Government Insurance Office of New South Wales and that the instructions "for the running of the case have been coming from the Government Insurance Office itself". 2. THE JUDGMENT: McDevitt DCJ accepted the plaintiff's evidence. His Honour said: "T gained the impression that she was trying to be truthful and I accept what she says. I find on the balance of probabilities that she was the passenger as she alleges." His Honour clearly had the advantage of observing her in evidence and the benefits to be derived from that in arriving at his conclusions of fact: Abalos v Australian Postal Commission (1990) 171 CLR 167. Accordingly he accepted that she had driven the car from Parramatta for between six and nine and a half hours until about twenty minutes from the point of the accident and that she had changed drivers between Wellington and Dubbo. His Honour, in accepting the plaintiff, properly perceived that to do so required an examination of the inferences to be drawn from the evidence of the police officer, the ambulance officer, and the hospital records. In relation to the police officer's evidence his Honour said: "... I must have regard, in estimating the weight to be given to the statement of the constable that she said that she was the driver, to the fact that she was shocked and dazed when he interviewed her at the scene, that she had just been involved in an accident, that she had been injured quite seriously and was in pain and that the driver's seat of the car was probably one of the few places left in the seriously damaged vehicle in which she could sit to await the arrival of the police and ambulance. The photographs in Exhibit O show the front of the vehicle to have been almost completely demolished. 6 UNREPORTED JUDGMENTS I do not regard her alleged admission that she was driving as having much weight." His Honour does not suggest that the plaintiff did not tell the officer that she was the driver; the suggestion is that she did so but that what she said was to be put aside because of her condition and what she had been through. This account of the effect of the police officer's evidence does not, I think, give full effect to what the officer said as to her condition at the time and in particular the manner of her answering his questions. His Honour' a indication of her having been affected by "shock" and pain is, of course, correct. But it does not provide a reason why she should tell him she was the driver when she was not. It was not put that the officer had pressed that version of the facts upon her: at least, his evidence was to the contrary. In relation to the ambulance officer, his Honour said: "T think that the ambulance driver's report is subject to the same criticism. The police officer had arrived before he did and I think it highly probable, given the lapse of eleven years, that he identified the driver of the car from what the policeman told him." There was, it is accepted, no evidence to support that conclusion and Mr Robison, for the plaintiff Miss Kettlewell, accepted that that was so. The ambulance officer Mr Wilkes had explained in evidence why an inquiry was made by him as to whether Miss Kettlewell was the driver and the significance of it. With respect to his Honour, I do not think that the report made by Mr Wilkes and the recollections he drew from it can be explained in that way. In addition, his account of the condition of Miss Kettlewell and of her capacity to answer questions must cast doubt upon his Honour's conclusions as to how the evidence of the police officer and the ambulance officer came to be what it was. As Mr Charteris, for the defendants, pointed out, the explanation of Mr Wilkes' evidence suggested by the judge had not been put to Mr Wilkes in cross-examination: it is I think clear from the thrust of his evidence that that suggestion, if put to him, would have been denied. His Honour does not, in what he said, deal with the record made by the ambulance officer of the "seatbelt syndrome" from which, in his view, Miss Kettlewell was suffering at the time. If she was driving the vehicle, it is to be inferred that she had the seatbelt fastened; if, as she said in evidence, she was sleeping with her head on the "console" between the two front seats, it is improbable that she had the seatbelt fastened. If the officer was correct in his statement of her injuries as "seatbelt syndrome" that assessment was inconsistent with her having been asleep in the position she said. As to the hospital records, his Honour said: "Tn the absence of any evidence concerning the hospital clinical notes I also think it probable that these clinical notes identify the plaintiff as having been the driver from a reading of the ambulance driver's report." Again, it is accepted for the plaintiff that there is nothing in the evidence to support this inference. It does not, I think, appear as a likely explanation of what there was said. In drawing inferences from the clinical records of the hospital, I am conscious of the limitations to be observed. But all of the written documents admitted into evidence have been referred to as the basis of relevant inferences and there is no appeal against his Honour's admission of the documents or, I think, the inferences which, as the judgment indicates, were sought to be drawn from them. URJ BOOTLE v KETTLEWELL (Mahoney JA) 7 Accordingly, in considering the conclusion to be drawn upon the issue as to who was the driver, the effect of the evidence of the police officer, the ambulance officer and the relevant records is to be weighed against the plaintiff. I appreciate the position of a judge who, having concluded - finally or provisionally - that a party is a credible and accurate witness, must deal with the effect of evidence which, if accepted, would lead to the contrary conclusion. Whether contrary evidence of this kind must be taken into account at the outset in determining whether the party's evidence should be accepted at all, or whether it may be dealt with later in the process of evaluation of the party's evidence, must depend upon the nature and circumstances of the case. In Fabre v Arenales (1992) 27 NSWLR 437 at 443 et seq, I considered a similar problem. See also Ghazel v Government Insurance Office of New South Wales (1992) 29 NSWLR 236. It is sufficient for present purposes to indicate that I do not think the weight of the evidence of the police officer, the ambulance officer and the hospital records is substantially lessened by the explanation of it to which his Honour in his judgment referred. But his Honour was influenced, and properly influenced, by a further matter: the fact that Mr Bootle, though present in court, did not give evidence that the plaintiff and not he was the driver of the vehicle at the time. I agree with his Honour that this is a matter of importance. It is therefore necessary to consider further the weight which should be given to it. This Court, on a rehearing, must come to its own decision: see Warren v Coombes (1979) 142 CLR 531. Where, in determining whether the witness should be accepted as credible and accurate, a trial judge has had and used the advantage of seeing witnesses give evidence, an appellate court should not ordinarily come to a different conclusion: see generally Abalos v Australian Postal Commission (1990) 171 CLR 167; Louth v Diprose (1992) 67 ALJR 95; Chambers v Jobling (1986) 7 NSWLR 1. However, it may do so if it appears that the judge has not made use of that advantage in the appropriate way or otherwise there are factors of the kind to which reference has been made in the cases: Voulis v Kozary (1976) 50 ALJR 59; Powell v Streatham Manor Nursing Home (1935) AC 243 at 267-8, per Lord Wright ("... some objective fact... some conclusive document or documents which constitute positive evidence refuting the oral evidence of the witness..."). In the present case, the evidence provided by the police officer, the ambulance officer and the records prepared by them and the hospital, having been prepared at the time, provide, in my opinion, a basis upon which this Court, on appeal, may and should differ from the judge in his acceptance of the plaintiff's evidence. The evidence inconsistent with acceptance of the plaintiff, is not, of course, of the same kind as the video or recorded evidence in Voulis v Kozary. But it was, I think, very strong. The police officer said positively that she told him she was the driver and the record of it says that. The plaintiffs evidence is - at least in the main - not a denial of this but a denial that she can remember what happened at the scene of the accident. ("I can't deny it because I can't recall"; "I do not recall talking to anyone that day"). The explanation the judge found for what she said - that she was in shock and in pain - does not explain why she should say she was driving when she was not. The ambulance officer gave clear and, I think, uncontested reasons why he should ask whether she was the driver and why he should record accurately the answer she gave. It was his duty to note and, I infer, to record if her state was such that her replies to him were unreliable. It was clear that it was not. 8 UNREPORTED JUDGMENTS If it be proper to infer, as I would, that the medical records were prepared by the hospital staff, again there is no reason why she should say she was the driver if she was not. And if such inference can be relied on here, there was reason why, if there was doubt as to her mental capacity to give accurate and reliable answers, that would have been noted. This does not mean that the effect of the plaintiff's evidence or of his Honour's acceptance of her are to be put aside. But it means that this Court may more readily arrive at a conclusion inconsistent with the acceptance of the plaintiff as a witness of truth and accuracy. These matters are an important part of the background against which the court must determine what weight is to be given to the failure of Mr Bootle to give evidence. The thrust of the submissions of Mr Robison for the plaintiff is generally to the following effect. The court must determine whether to accept the evidence of Miss Kettlewell that she was not driving the car at the time. The only person who could give direct evidence to the contrary chose not to do so. Jones v Dunkel (1959) 101 CLR 298 establishes that, at the least, an inference may be drawn that Mr Bootle's evidence, if given, would not have assisted the defendants by casting doubt upon the correctness of the plaintiff's evidence. Accordingly, it is proper to accept her evidence in this regard. That argument may, perhaps, be taken further in her favour. In the circumstances of this case, if an inference is to be drawn from Mr Bootle's failure to give evidence, the inference would probably be that, if he gave evidence, it would be that he was driving the vehicle. Mr Charteris, in argument, accepted this to be so. Accordingly, it might be said for the plaintiff that the acceptance of her evidence is to be approached upon the basis, not merely that Mr Bootle's evidence would not be inconsistent with it, but upon the basis that it is probable that his evidence, if given, would positively support hers. In Fabre v Arenales: at 443 et seq; I considered the effect of the rule discussed in Jones v Dunkel and the effect that it has upon the fact-finding process. In understanding what was decided in Jones v Dunkel, it is, in my respectful opinion, important to distinguish between different applications of the process of inference there in question. Jones v Dunkel and the cases in which it is invoked are, or may be, concerned with two distinct questions: whether there is evidence of a fact necessary to a party's case; and, where a witness who can speak as to a matter does not give evidence, what inferences are to be drawn from that and the weight to be given to those inferences. Assume that, in order to establish his cause of action, the plaintiff must prove that a notice was not given and that the person who could alone give evidence that it was is available but is not called by the plaintiff to give that evidence. The "common sense" inference would run: the witness could have proved the notice was not given, if that was the case; he was not called to prove it; therefore, it is probable that he could not have given that evidence; and therefore the inference to be drawn is that the notice was not given. It might be argued that that inference could be relied on to establish that part of the plaintiff's cause of action. But Jones v Dunkel held that such an inference cannot be relied on in that way. The fact that a witness who might have done so does not give evidence does not - special cases apart - provide evidence of the fact of which he could have given evidence. If the absence of evidence of that fact leaves the party's case defective, the fact that the witness does not give evidence will ordinarily not establish that fact. It was this which, in my respectful opinion, the judgment of Kitto J was intended to emphasise ("... could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched": 101 CLR at 308). URJ BOOTLE v KETTLEWELL (Mahoney JA) 9 The question of assessment of evidence raises different issues. Where that is in question, the court will ordinarily determine, first, what inferences can and should be drawn from the fact that the witness fails to give evidence as to the fact; and, second, it will then consider what weight is to be given to those inferences in determining whether the fact exists. This, at least, is ordinarily the process of reasoning involved. The inference to be drawn from the failure to give evidence will depend upon the circumstances. As Windeyer J pointed out in Jones v Dunkel: at 320 et seq; the inference to be drawn may ordinarily be that he fears to give or call the evidence because the evidence he would give would be inconsistent with his interest. As I suggested in Fabre v Arenales: at 443-6; in some cases it may be possible, where a party is involved, to see the failure to give evidence of a fact as also an admission or the like. But, in some cases, no relevant inference may properly be drawn. This is because there may be, as Windeyer J indicated, another reason why the witness gave no evidence and therefore no inference can be drawn which will support or damage the credibility of the other party. Thus, as Kirby P indicated in Ghazal v Government Insurance Office of New South Wales: (1992) 29 NSWLR 236; the failure to give evidence may be sufficiently accounted for. Accordingly, it is only after the court has determined what, if any, inference is to be drawn from the witness's failure to give evidence that the effect of that inference and, accordingly, the significance of the failure to give evidence in the fact-finding process can be assessed. What inference is to be drawn from the fact that Mr Bootle did not give evidence? Had Mr Bootle been uninsured and personally concerned to meet the judgment against him and had the case been conducted merely according to his instructions, his failure to give evidence would base a "plain common sense" inference that he was the driver and that he chose not to swear to the contrary. But the present case is not so simple. Prima facie, Mr Bootle would not bear the burden of any judgment. The evidence establishes that the defendants are insured against any judgment. It may be that, under the insurance arrangements, they would lose the benefit of their insurance if they failed without proper reason to give evidence if requested to do so by the insurer. That has not been explored and it is not necessary to pursue the matters, statutory, documentary, or otherwise governing it. A significant matter is the relationship between Mr Bootle and Miss Kettlewell. He may have had the wish not to give evidence against her. As I have indicated, they had a close personal relationship and a child resulted. It was not suggested that any significant animus has developed between them. But however that be, it was not seriously contested in argument that Mr Bootle would be favourably disposed to Miss Kettlewell's claim. In addition, they both at a later time had claimed to Senior Constable Edwards that Mr Bootle was the driver of the vehicle and had done so in circumstances where he had seen fit to advise them that they should see a solicitor. It is in this context that it is necessary to consider what inference is to be drawn from Mr Bootle's failure to give evidence denying that he was the driver. It is no doubt possible to approach matters of this kind by determining precisely what are the legal rights and duties of parties, if properly pressed to a judicial decision, and then to draw inferences as to why parties have acted as they have, based upon those rights and duties. It is possible to argue that, in litigation, the rights and duties of the parties are to be determined according to rules formulated in this way. With respect to those who may be of a contrary view, I 10 UNREPORTED JUDGMENTS do not think that such an approach should be adopted; at least, it should not be adopted where what is involved is the determination of the inference which is in fact to be drawn from what a party said and did. Litigation is not a game conducted in fact according to model rules. Parties often do not know precisely what are their legal rights and duties; often they act without sufficient thought as to them or upon an inadequate understanding or appreciation of them. The inference which would be drawn as to their purpose had they known and thought about such matters is often quite different from what in fact led them to act as they did. "The blundering attorney's clerk" is often closer to fact than to fiction. I do not mean by this that those acting for the defendants "blundered". But it is, I think, important, if inferences are to be drawn as to what Mr Bootle would, if called, have said, to understand why it was in fact that he was not called. No evidence was called to establish why Mr Bootle did not give evidence. It may be that such evidence would not have been admissible: cf generally Jamison v Government Insurance Office of New South Wales (1988) 7 MVR 209. But it is, for the purpose of determining what in fact happened, necessary to attempt an understanding of the decision that was made. That decision was, I infer, made, not by Mr Bootle alone, but by the solicitor representing the insurer. The solicitor would have appreciated that, if Mr Bootle gave evidence that he was the driver, that might significantly support the plaintiff's evidence. Once the evidence was called, it might not be possible for him to suggest that the fact was the contrary. If it was possible, the difficulty of questioning Mr Bootle in a way which was not impermissible cross-examination would be seen as posing further difficulties. It may be that what in fact motivated the solicitor in not calling Mr Bootle as a witness was not the acceptance of what he would say, viz, that he was the driver, but the difficulty of asserting what the solicitor believed to be the case, viz, that he was not. I do not think that it should be inferred that the solicitor acted without knowing what Mr Bootle would probably say; it may be that he acted as he did because Mr Bootle had indicated he would say he was the driver. This, of course, is or verges on speculation. What follows from this? It is to be taken in the plaintiff's favour that the relevant defendant would, if called, have probably said that he was the driver. But this does not conclude the matter. If he had done so, it would have remained for the court to determine whether that evidence, and the evidence of Miss Kettlewell, should be accepted. That, in the end, was the question to be determined. In favour of the plaintiff the court must weigh the probability or otherwise of the plaintiff and Mr Bootle saying that he was the driver when he was not. If they falsely claimed this knowing the claim to be false, they would be guilty of a serious offence for which a period of imprisonment would be an appropriate and likely penalty. The court must weigh the likelihood, and the improbability, of their acting together in that way: see Briginshaw v Briginshaw (1938) 60 CLR 336; Helton v Allen (1940) 63 CLR 691. It is possible that their evidence, if wrong, would be wrong by error and not by design. In view of the position taken by them shortly after the accident, this appears somewhat unlikely. But the vagaries of memory and self-deception cannot completely put aside. The court must consider also whether it is likely that, immediately after the accident, the parties had agreed together that Miss Kettlewell would claim, contrary to the fact, that she was the driver. There appears no real reason for this. The only suggestion was the record of Mr Bootle of convictions for driving under URJ BOOTLE v KETTLEWELL (Powell JA) 11 the influence. But alcohol was not in question in this case. It is possible that they felt the danger of prosecution for negligent driving or the like. But, for myself, Iam not convinced that they would then have seen that as an adequate reason for lying as to the matter. Nor do I think that it is to be accepted that Miss Kettlewell did not know what she was saying to the officers and the medical staff at the time and that the deception lay only with Mr Bootle. That was not put and the evidence is, I think, completely to the contrary. As I have said, in the end this Court must come to its own decision. In my opinion, the court should conclude that the plaintiff has not established that Mr Bootle was the driver of the car at the time: it should accept that the probabilities are that he was not. The contemporaneous evidence of the police officer, the ambulance officer and of the medical records is, in my opinion, so strong that the court should not be satisfied that what Miss Kettlewell said in her proceeding was correct. In my opinion, that contemporaneous evidence creates such a doubt as to the accuracy of her evidence that I am not appropriately satisfied that it was true. In these circumstances the appeal should be upheld. Mr Charteris raised the possibility of a new trial. I do not think that a new trial is the appropriate remedy. If the court be not satisfied that Mr Bootle was the driver, the appropriate remedy is a verdict for the defendants. Accordingly, in my opinion, the appeal should be upheld, the judgment set aside, and there should be substituted a judgment for the defendants. The plaintiff should pay the costs in the court below and in this Court. She should, if entitled, have a certificate under the Suitors' Fund Act. Handley JA In this matter I have had the benefit of reading in draft form the reasons for judgment of Mahoney AP. I agree with those reasons and with the orders he has proposed. I would only add for myself that in my view the failure by the defendant Bootle to give evidence at the trial does lead to an inference in accordance with Jones v Dunkel (1959) 101 CLR 298 that his evidence in chief would not have assisted the defendant's case. However, in the circumstances this inference is, in my view, of little weight and affords no reason for rejecting the contemporary documentary evidence referred to by Mahoney JA which is both consistent and credible. The "failure" of the Government Insurance Office which, as it was entitled to, had taken over the conduct of the defence (compare McCann u Parsons (1954) 93 CLR 418) to call Mr Bootle as a witness at the trial is perfectly understandable. Mr Bootle was the party on the record and counsel nominally appearing for him on the instructions of the Government Insurance Office could not invoke s53 of the Evidence Act against his nominal client. See Vocisano v Vocisano (1974) 130 CLR 267. Accordingly, if the defendant had been called and gave evidence adverse to the interests of the insurer he could not have been declared hostile and cross-examined by the counsel nominally appearing for him. In these circumstances, as I have already indicated, the failure of the defendant to give evidence at the trial is, in the circumstances of this case, a matter of very little weight. Powell JA I have read in draft the Judgments of Mahoney AP and Handley JA. I agree with the Judgment of Mahoney AP and the Orders which he proposes, as also do I agree with the additional observations of Handley JA. 1. Appeal upheld, judgment set aside. 2. Judgment for defendants substituted. 12 UNREPORTED JUDGMENTS 3. Plaintiff to pay the costs in the court below and in this Court and, if entitled, have a certificate under the Suitors Fund Act. Counsel: 5 Appellants: C D CHARTERIS Respondent: B S ROBISON Solicitors: 10 Appellants: G M MEADOWS (GIO OF NSW) Respondent: BULL SON and SCHMIDT