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Patel v Fraser  WADC 124
The Plaintiff, an off-duty police officer, was injured in an accident when he pulled out of a T-junction into the path of the Defendant’s oncoming grader.
The Plaintiff made a personal injury claim, relevantly alleging that the Defendant indicated to turn left at the T-junction and was in the left slip lane, but ultimately failed to turn and caused the collision.
The Defendant’s case was that he had not indicated to turn left and did not enter the left slip lane.
The claim was the subject of a two day hearing before Wallace DCJ.
Wallace DCJ summarised the evidence of the Plaintiff, the Defendant, and independent witness, and concluded that:
I do not have any reservations in relation to the credibility of each of the witnesses. However, as will become apparent, I do have concerns in respect of the reliability and/or accuracy of the plaintiff's evidence, which in material respects was contradictory to the consistent evidence of both the defendant and the only independent eyewitness, Mr Kellow.
Whilst the plaintiff was no doubt recounting to the best of his ability his recollection as to the accident and the manner in which it took place, in my view his evidence was tainted by a number of key assumptions he made that day, which were unfortunately erroneous, and which has resulted in a degree of reconstruction.
Her Honour ultimately accepted the evidence of the Defendant and Mr Kellow that the Defendant’s grader had not entered the left slip lane. On that basis, the Plaintiff had failed to establish, on the balance of probabilities, that the Defendant was negligent.
The decision largely turns on its own facts, with Her Honour’s decision being based on an assessment of the witness evidence. However, it serves as an important reminder of the risks of litigation for all parties and the importance of an objective consideration of the whole of the evidence. Indeed, Her Honour did not find any of the witnesses to lack credibility, but determined that the plaintiff’s evidence was inconsistent with the evidence of the defendant and the independent witness, Mr Kellow.
The availability of testimony from a witness without any connection to either party is often critical as such a witness does not have the understandable tendency of a party to ‘reconstruct’ the recollection of the facts in a fashion which assists that party.
Note: Moray & Agnew acted for the successful Defendant.
Further information / assistance regarding the issues raised in this article is available from the authors, Penny Moore –Partner, Daniel Coster – Senior Associate, or your usual contact at Moray & Agnew.