EBEJER v WILKINSON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P, PRIESTLEY JA and STEIN JA 23 May, 12 June 1997 [1997] NSWCA 99 The appellant was injured in a motor vehicle accident and sued the respondent claiming damages on the basis that she was the driver of the vehicle, that he was the passenger and that the accident was due to her negligence. Abadee J dismissed the claim because the appellant did not persuade him that it was the respondent (and not the appellant) who was the driver. On appeal, the appellant challenged the trial judge's rejection of the respondent's evidence given on oath in the Local Court (the respondent did not give evidence before Abadee J). The trial judge's finding in relation to the insurer's obligation or otherwise to make an application under s 66A Motor Accident's Act 1988 (for joinder) was also challenged on appeal. Held - Appeal dismissed: 1. The various attacks on the trial judge's reasoning process do not indicate appealable error, or convince the court that his conclusion that the plaintiff's onus was not satisfied should be displaced. Mason P. This is an appeal against a verdict for the defendant. The appellant was injured in a motor vehicle accident that occurred sometime after 3.00am on 9 January 1988 at Liverpool. The appellant sued the respondent Ms Julie Wilkinson claiming damages on the basis that she was the driver of the vehicle, that he was a passenger, and that the accident was due to her negligence. The claim failed because the appellant did not persuade Abadee J that it was the respondent (and not the appellant) who was the driver. The appellant and the respondent had lived together in a de facto relationship since about 1987. It is clear that whoever was the driver was negligent. Abadee J made such a finding. The car in which the parties were travelling failed to make a right hand curve, crossed the median strip, struck a light pole and various structures, and overturned anumber of times. The two parties were found unconscious at the scene, outside the vehicle and lying on their backs on the ground. The trial judge found that no inference could be drawn as to who was the driver from the car's obvious movements in leaving the road, the collision impact, the damage sustained, the position of the bodies, or the injuries suffered. At trial the appellant gave evidence that he had no memory of the accident. He said that, while returning from work on the day in question, he had been booked for speeding and for being an unlicensed driver. Then he went to a pub for a 'a couple of beers'. He went home to change to go out. He said that his next memory was 'then waking up in hospital the following day'. It emerged from other evidence that the appellant and the respondent had visited a disco club where each spent a considerable time drinking. It is clear that the appellant was extremely intoxicated by the time he left the club to go home in the car. The critical issue was who was then the driver. 2 UNREPORTED JUDGMENTS The appellant's inability to recall any aspect of the accident was not challenged in cross examination. Indeed it was embraced by the cross-examiner. The trial judge made no finding that the amnesia was feigned. Accordingly, the appellant's evidence on the critical issue may be put to one side. Both parties were found lying unconscious on the road, near the back of the car. Each smelled strongly of alcohol. The respondents" two shoes were found on thepassenger side of the car, held by the flooring which was crumpled sideways like a concertina. A grey laced shoe belonging to the appellant was found under the accelerator pedal on the driver's side. The other shoe was on his foot. The location of the shoes suggested circumstantially that the appellant was the driver. However the trial judge somewhat generously refrained from drawing this inference because of the possibility that the appellant's shoe could have come from anywhere in the car during the course of its movement at or during the circumstances of the accident. The respondent did not contend that this finding should be overturned. How the possible inference flowing from the location on the passenger side of the respondent's shoes was deflected will be addressed below. Leaving aside the shoes, none of the objective facts made it probable that the appellant was the passenger. The fact that he was obviously intoxicated was in itself neutral, given that the respondent had also been drinking to a degree that she smelled strongly of alcohol. The appellant had shown little concern earlier for the restrictions imposed by the Motor Traffic Act 1909 in that he had already been booked that day for speeding and for driving while unlicensed. It was the appellant's vehicle. The appellant gave evidence that the respondent had driven his car on occasions, although he conceded that she was not in the habit of doing so. He said that she did not have a driver's licence at the time, although she had a learner's permit. The upshot is that, without evidence of the unusual event of the respondent taking the driver's role, the appellant could not prove that he was the passenger. The appellant called a friend of 20 years John Muldoon. Mr Muldoon said that he was at the disco around midnight when he first saw the parties. When he (Muldoon) was leaving and standing in the taxi rank, he saw the appellant who was 'very drunk' and 'could hardly stand up'. He said that the respondent was in the passenger seat and that the appellant got into the driver's seat. He (Muldoon) then pulled the appellant out of the car, took him to the passenger seat, where he put the seat belt around him. He said that the respondent had jumped into the driver's seat and that he saw the respondent driving the car as it left the club. Had it been accepted, this evidence would have been critical in the appellant's favour. However the evidence was rejected by Abadee J who found that Mr Muldoon was neither a reliable nor a credible witness. This was based upon significant inconsistencies revealed in his evidence, particularly when compared with prior inconsistent statements and the view formed by the judge having regard to the witness" demeanour. The judge's careful findings on this issue (at pp 27-31 of the judgment) cannot be challenged having regard to the principles enunciated in Abalos v Australian Postal Commission (1990) 171 CLR 167. The respondent was not called as a witness at the trial. Obviously she could have been called by senior counsel who was conducting the case in her name, but on the instructions of her insurer. Equally she could have been called by the appellant in his case. The parties were still living together at the date of the trial which was in November 1994. They were the parents of a child who had been born on 31 December 1990. URJ EBEJER v WILKINSON (Mason P) 3 Following the accident the respondent had given a statement to the police in which she said that she was the driver of the vehicle on the night in question. The police obviously did not believe her, because the appellant was charged with various offences, including driving with the prescribed concentration of alcohol in his blood and driving as an unlicensed driver; and the respondent was charged with providing false information to the police. The outcome of those proceedings in the Local Court at Liverpool was (properly) not the subject of evidence at the trial. What was put into evidence, ultimately without objection, was the transcript of the respondent's evidence in chief in those proceedings. This became Exhibit B. This evidence in the Local Court was to the effect that the respondent had had an argument with the appellant at the club, in consequence of which she left and waited in the car, sitting in the passenger seat. She said that she took her shoes off when she got into the car (they were black stilettos). She dozed off for a while, to be woken up by Mr Muldoon who knocked on the window. At that stage the appellant was getting into the driver's seat of the car. She said, referring to the appellant: Peter wanted to drive, but I told him he wasn't to drive and then me and John both said to him that he wasn't to drive. She said that she jumped over to the driver's seat while the appellant walked around the front of the vehicle and got into the passenger side. She was driving at the time of the accident. It is appropriate at this stage to set out the passage in the judgment of Abadee J where he explains his reasons for not accepting this transcript as probative of the appellant's case that the respondent was the driver: As I have said Ms Wilkinson was not called. Her evidence before the Local Court was tendered without objection. It has been the subject of considerable criticism by the defendant who has correctly submitted that its weight is for me to determine and that in doing so it is proper to look at both its content and all the surrounding circumstances. Mr Murray QC submitted that in doing so it is necessary for me also to consider the close personal relationship between the plaintiff and the defendant. As I have said Mr Robberds QC submits that I should accept her Local Court evidence not reject it, nor reject the credibility of such particularly in circumstances of not having seen her nor heard her. It seems to me that the weight of 'her' evidence is one for me to determine. It remains for me to determine whether that evidence like other evidence should be accepted. Having considered these matters I am unable to accept her evidence. I am unwilling to act upon it for the purpose of concluding that the plaintiff has established on the probabilities that she was the driver. Her evidence in the Local Court was, but in part tendered. It is incomplete. I am unable to conclude that it is reliable, or that by reference to such, the plaintiff has discharged the onus of proving the defendant was the driver. However, in saying this I repeat what I said in argument. I do not find that the plaintiff and the defendant 'acted together' or agreed that the plaintiff would present a false claim. T have already referred to the relationship between the parties. They were both charged in respect of this accident on 29 February 1988. She gave evidence in May 1988. The proceedings were not commenced till 1991. The plaintiff was seriously injured. They had a close personal relationship. The other puzzling features in relation to whether the defendant was the driver as she claimed, may be also identified. According to the plaintiff she was not licensed or a learner's permit holder at the time, nor was she in the habit of driving his car. The evidence would suggest that she too had probably consumed alcohol. In relation to this matter I refer again to the police evidence (which I accept) as to what they smelt 4 UNREPORTED JUDGMENTS in relation to the parties at the scene. At the time she was found lying on the road she had bare legs and bare feet. A number of questions might legitimately be asked. Did she remove her shoes at some time, were they removed before she drove, did she remove them after the accident and before lapsing into unconsciousness? Did she drive from the club for some distance in circumstances where she probably had not only consumed alcohol, but inter alia, along a major highway for some distance, the Hume Highway, without shoes on, and whilst unlicensed and without a permit. It is also to be remembered that her shoes were found in the crumpled folds of the front passenger's side floor of thecar, after the car had been involved in heavy impacts and had probably inter alia, rolled over. Against this background I turn to consider what the defendant told the Local Court in May 1988 according to her evidence as tendered without objection in these proceedings. She said that on the night in question there had been a disagreement at the club, the plaintiff was drinking, and she went downstairs and waited in the car. She moved into the passenger's side, turned on the radio, and dozed off. She said she took her shoes off to get 'comfortable'. One of the plaintiff's friends, a Mr Muldoon knocked on the window and awakened her. The plaintiff at that time was getting into the car on the driver's side and Muldoon was on her side or the passenger's side. The plaintiff wanted to drive but she told him not to. She made no reference to the alcoholic state of the defendant. She and Muldoon told him he wasn't to drive. The plaintiff got out of the car and she jumped over the seat. The plaintiff walked around the front of the car. She left her shoes on the floor. The keys were in the ignition because she had been listening to the radio. She left and drove home. She remembered going up Railway Parade, going over a bridge. She continued down onto the Hume Highway. The defendant said she had no (my emphasis) memory of turning into Macquarie Street. Her last memory was of 'driving down the highway, I remember going past Warwick Farm towards Liverpool and nothing after that'. She did not remember anything of the accident or of becoming conscious after the accident. Her first memory or recollection or first thing she became conscious of was waking up, in the morning sometime. She vaguely remembered her father coming to the hospital. The defendant made no reference to her putting on a seat belt or indeed seeing the plaintiff allegedly place his on. Iam unable to conclude or to infer that the defendant's lack of recollection was due to the injuries suffered, or due to memory loss or retrograde amnesia suffered in consequence of the accident. Despite some puzzlement I make no finding as to why the defendant said she had no memory after the point of time given in her evidence at the Local Court. In relation to the reason for the police finding of her shoes in the location described and in the passenger's compartment, the plaintiff asks me to accept the evidence of the defendant as given in the Local Court. It should also be said her evidence provides no explanation as to why the plaintiff's shoe was found in the position in the driver's compartment. It remains in the end for me to determine whether the defendant's evidence to the Local Court should be accepted: Bootle's case [Bootle v Kettlewell (1993) 18 MVR 177]. I must come to my own decision. As I have indicated I am not in this case prepared to accept the defendant's Local Court evidence or act upon it. I have already indicated some of my reasons why. In much the same way as Mahoney JA was prepared to take in the plaintiff's favour that the relevant defendant in Bootle would, if called, have probably said that he was the driver, as I have said I am prepared to take in the plaintiff's favour URJ EBEJER v WILKINSON (Mason P) 5 that the defendant if called would probably have said that she was the driver. It would border on the unreal to consider that the situation would be otherwise. But similarly that does not conclude the matter. It is hardly likely that had the defendant not been called she would have admitted that she was not the driver. To do so would not merely have involved the putting forward of a false claim, but more significantly, in the light of her sworn evidence in the Local Court that she was the driver, she would be potentially exposed to being guilty of a serious offence. In the end I am not prepared to act upon the evidence of the defendant in the Local Court to establish that the defendant was the driver. At the time of the accident she appears to have had some smell of alcohol about her. She was according to the plaintiff, unlicensed and without a permit. It was not her car. She was found with no shoes, which in turn were in the passenger's compartment. Coincidentally, or fortuitously, the plaintiffs shoes was found in the driver's compartment. I also have regard to whether the defendant would unlicensed, shoe-less, having probably consumed some alcohol (but even if such was not the case), have driven the defendant's car some distance from the club partly along a major highway (albeit, in the early hours of the morning) to the accident location. I also have regard to her admitted evidence of memory loss prior to the accident, to the extent that such appears in the Local Court evidence, and the lack of acceptable explanation for it. I am not prepared to regard her Local Court evidence as being reliable or sufficiently reliable, or of such weight to hold by reference to it that the plaintiff has discharged the onus of establishing that she was the driver. In relation to the evidence tendered at the Local Court, it is appropriate also to observe that it appears to be evidence-in-chief led from her in the Local Court by her legal representative. It reveals some leading questions; it suggests some instances of lapses of memory, and indeed, in some respects is even in conflict with evidence given by Mr Muldoon, whose evidence I will turn to in due course. Rejection of his evidence does not require acceptance of her evidence. Indeed, there is inconsistency to be found not only within his evidence but also within her Local Court evidence.' Before addressing the appellant's attack on these findings I should record that it was common ground at the trial that no inference should be drawn in accordance with Jones v Dunkel (1959) 101 CLR 298 from the respondent's failure to give evidence. Indeed it was agreed that this was not a Jones v Dunkel type of case, andthat no inference arose from the failure of either 'party' to call Ms Wilkinson. Abadee J had also recorded, earlier in his judgment, that it had not been seriously contested in argument that the respondent would be favourably disposed to the appellant's claim. He also observed that, absent the agreement relating to Jones v Dunkel, he would nevertheless have concluded that any inference from the failure of the respondent to give evidence (or the failure of her insurer to call her) would in the event and in the circumstances of the case have carried little weight. The principal attack upon the way the trial judge addressed the probative effect of Ex B (the Local Court evidence of the respondent) related to an argument based on s 66A of the Motor Accidents Act 1988 to which I shall return. However there were independent arguments, all of which proceeded from the starting point that Ex B represented an admission by the respondent that she was the driver. It was contended that the trial judge erred in his assessment of the weight of Ex B JOBNAME: No Job Name PAGE: 6 SESS: 1 OUTPUT: Mon Feb 25 18:25:12 2008 /reports/caseml]/case/urj/9708265 UNREPORTED JUDGMENTS in that he did not have regard to the fact that (a) the respondent's evidence at the Local Court was given under oath; (b) her evidence was supported by that of Mr Muldoon; (c) her evidence was not contradicted by any other evidence; and (d) it was against her interest to have admitted she was the driver, because this precluded her from recovering damages in respect of the injuries which she suffered. I would reject these arguments. As to (a), this fact did not compel acceptance of the evidence, either generally or on the facts of the particular case. Abadee J wasentitled to reject the probative effect of that untested evidence in the way he did in the concluding paragraph of the extract which I have quoted. After all, it must be remembered that the respondent was giving evidence in defence of a charge that she had (by making the identical assertion earlier) knowingly given false information to the police. How well, if at all, the respondent handled any cross examination at the Local Court was not revealed in the forensic poker game being played at trial. As to (b), any 'support' from Mr Muldoon's evidence was removed by the rejection of the probative force of that evidence by Abadee J. As to (c), it is not the law that a trier of fact must accept a piece of evidence simply because it is uncontradicted. This is not even the law where that evidence is given on oath before the trier of fact: see Ellis v Wallsend District Hospital (1987) 17 NSWLR 553 at 586-8; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11 at 17 , 23. As to (d), there are several reasons why this is not conclusive, nor indeed of any great weight. While 'evidence' by the respondent that she was the driver was inimical to any claim that she might have brought for the injuries that she suffered in the accident, it would appear that her injuries were less than those of the appellant. Since the two were members of a family unit, it is at least possible that it would have been in her interest to support the appellant's case. It was certainly in her interest to do so at the time the two were charged in the Local Court. In the upshot, the various attacks on the trial judge's reasoning process do not indicate appealable error, or convince me that his conclusion that the plaintiff's onus was not satisfied should be displaced. Counsel for the appellant submits that it is highly improbable that these two persons could have been mistaken in what they said on oath (Mr Muldoon at the trial, and the respondent in her evidence before the Local Court) about the respondent being the driver. I agree. But it does not follow that their evidence had to be accepted. Abadee J declined to draw the inference of deliberate lying or conspiracy to present a false claim. But it is not possible, in my view, to treat this as tantamount to a decision that the two persons were telling the truth on the critical issue. A major ground of appeal was that the failure of the insurer to make an application pursuant to s 66A of the Motor Accidents Act 1988 should have been taken into account against the respondent in the trial judge's assessment of the case. Section 66A provides: Joinder of insurer where false claim alleged 66A. Where: URJ EBEJER v WILKINSON (Mason P) 7 (a) (b) (a) (b) (a) (b) (a) (b) court proceedings have been commenced against a person in respect of a claim; and the person's insurer has given the plaintiff particulars alleging that the claim has not been made in good faith, the insurer may apply to the court to be joined as a party to the proceedings. (2) If the court gives the insurer leave to be joined as a party, the insurer may call as a witness any person able to give evidence relating to the occurrence out of which the claim arose or evidence of other matters relatingto the claim, including a person who was, at the time of the occurrence, the owner or the driver of the vehicle. (3) The insurer may examine the witness as to the occurrence out of which the claim arose and may also, with the leave of the court, examine the witness as to: any other claim in which the witness was involved either as a claimant, a witness or an owner or driver of the motor vehicle; and the credibility of the witness. (4) If the court gives leave to do so, the insurer may: cross-examine the witness; and lead other evidence to refute the evidence given by the witness, as to any of the matters as to which the insurer might have examined the witness under subsection (3). (5) Any right to examine or cross-examine a witness arising under this section is additional to and not in diminution of any right to examine or cross-examine the person arising under any other law. (6) This section applies despite section 53 of the Evidence Act 1898. (7) Subsections (3)-(6) apply to: the GIO as defendant in relation to claims referred to in section 147B; and a licensed insurer as defendant in relation to any claim, in the same way as those subsections apply to a licensed insurer who is granted leave to be joined as a party. (8) This applies to court proceedings commenced before or after the date of commencement of this section." The appellant argues that the section provided an available facility to the Government Insurance Office, and that failure to invoke the facility means that the respondent's admission that she was the driver should not have been rejected. The trial judge rejected a similar argument below. He said: It seems to me that reliance upon s 66A does not assist the plaintiff. The fact that an application might have been made under s 66A does not mean it would necessarily have been granted. The Court's leave is required. Leaveis not automatic. Nor is it clear if an application had been made leave would have been given under subss (3) or (4) or whether the defendant would have been called: ss 66A(2). The fact is s 66A was not invoked or sought to be invoked. One cannot say whether an order would have been made even had one been sought. The authorities clearly show that s 66A aside, the issue of driver may properly be raised by counsel normally appearing on instructions from the third party insurer in proceedings where the actual owner or driver is sued in his/her own name: cf Bootle; Chambers v Jobling (1987) 7 JOBNAME: No Job Name PAGE: 8 SESS: 1 OUTPUT: Mon Feb 25 18:25:12 2008 /reports/caseml]/case/urj/9708265 UNREPORTED JUDGMENTS NSWLR 1; Cassell v Skelton (CA, 2 February 1990, unreported). The s 66A procedure is not the only procedure available to permit the issue of driver to be raised. It is perhaps a further or an alternative procedure which could permit of such issue to be canvassed which if allowed avoids some of the difficulties and problems for the defendants as discussed in Bootle, particularly by Handley JA, and further some of the potential pleading or procedural problems addressed and discussed in Ghazal [v Government Insurance Office of New South Wales (1992) 29 NSWLR 336] by Mahoney JA at 347. However, the plaintiff's submission does illustrate that in proceedings as presently constituted, the 'insurer' when faced with the difficulties mentioned by Handley JA in Bootle and the instant case might be able to overcome such by seeking to invoke the provisions of s 66A and potentially take advantage of the statutory privileges or benefits arising thereunder. quot; where it has sought to dispute the driver. It is not suggested that it must be. In the circumstances I do not accept the submission in terms advanced on behalf of the plaintiff. I respectfully agree. Section 66A is a facility open to an insurer. It is not a provision that has the effect that if available and not used then the insurer is subrogated to some evidentiary deficit. Section 66A does not spell out that the sanction or inference suggested should follow. In the absence of clear language the court should be slow to infer a consequence that touches the rights of a person who remains, technically, a third party to the proceedings and which might lead to a spate of defensive applications. It is relevant that Part 77 r 95 contemplates application to intervene being made well before trial and at a time when the insurer will be in the dark as to the trial tactics. Not only was s 66A not invoked, it is far from clear that it could have been invoked, even if the insurer were taken to have had the foresight to predict the way in which the case would be conducted at trial by the appellant. Section 66A(1) confines itself to a case where the insurer has given particulars alleging that the claim has not been made in good faith. In the present case the appellant's professed and apparently accepted amnesia would have made it difficult for such an allegation to have been made, and certainly difficult to predict that it would have succeeded. And, as Abadee J noted (at p 7 of his judgment), the evidence at trial did not support a conclusion of perjury by the respondent. The judge had also found that he was not prepared to infer conspiracy between the parties and Mr Muldoon. The appellant's argument appears on analysis to involve an attempt to create a new category of Jones v Dunkel type inference. Implicit in the reasoning is the contention that an insurer that neglects its right (in a proper case) to intervene and to seek (and presumably obtain) leave to cross-examine the defendant will be taken to have thereby strengthened the inferences that might otherwise flow in favour of acceptance of a plaintiff's case. I do not see Jones v Dunkel as authority for this extended proposition. URJ EBEJER v WILKINSON (Stein JA) 9 In any event, the agreement of the parties that the case as conducted at trial did not lead to a Jones v Dunkel inference (and what I infer to have been the knock-for-knockreasons that underlay such an agreement) seems to convey, as a corollary, the 5 rejection of a similar process of reasoning that prays s 66A in aid. I would dismiss the appeal with costs. Priestley JA. I agree with Mason P. The appellant's case in this court cannot, in my opinion overcome the trial judge's factual findings. When the doctrine of Abalos v Australian Postal Commission (1990) 171 CLR 167 is taken into account none of those findings is seriously open to challenge. In my opinion, the appeal should be dismissed with costs. Stein JA. I agree with Mason P.Appeal dismissed with costs. Counsel for the appellant: M J FINNANE QC with E FINNANE Solicitors for the appellant: RUSSELL C BYRNES Counsel for the respondent: B MURRAY with H DI SUMERO Solicitors for the respondent: G M MEADOWS