Widera v Reid

[2002] ACTCA 3

ACT Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Credibility findings
5. › Whether trial judge misused advantage of seeing and hearing witnesses
6. › [name withheld] v Australian National Railways Commission
1. Evidence
2. › Failure to call witness
3. › [name withheld] v [name withheld] inference
4. › Whether inference properly drawn
5. › Witness available to both parties
6. › Whether inference drawn 'both ways'
1. Tort
2. › Negligence
3. › Motor vehicle accident
4. › Pedestrian struck by vehicle
5. › Whether breach of duty of care established
6. › Onus of proof on plaintiff

Quick Take

A trial judge's observation that a [name withheld] v [name withheld] inference could be drawn 'both ways' from a witness's absence (where the witness was available to both parties) may properly be understood as an explanation for declining to draw the inference against either party, rather than as an impermissible drawing of the inference. The [name withheld] principle of appellate deference to credibility findings applies with full force where the trial judge relied on documentary evidence (ambulance and hospital records) in addition to demeanour-based assessments.