Davies v Pyke

(2004) 10 VR 339; [2004] VSCA 124

Victorian Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Motor vehicles
3. › Motorcycle accident
4. › Pillion passenger
5. › Whether verdict of no negligence unreasonable
6. › Whether evidence left in such state that jury bound to find negligence
1. Insurance
2. › Motor vehicle insurance
3. › Transport Accident Commission
4. › Conduct of defence by insurer
5. › Whether insurer limited to propounding case according to insured's instructions
6. › Whether insurer's counsel may announce appearance for Commission rather than defendant
7. › Transport Accident Act 1986 (Vic), s 94(10)
1. Evidence
2. › Jones v Dunkel rule
3. › Failure to call witness
4. › Defendant said to be in league with plaintiff
5. › Whether absence of defendant from witness box permits inference adverse to plaintiff
6. › Whether connivance between plaintiff and defendant constitutes legitimate explanation for failure of defence to call defendant

Quick Take

The Transport Accident Commission, when exercising its power under s 94(10) of the Transport Accident Act 1986 (Vic) to conduct a defence, is not limited to propounding the insured's version of events and may advance its own case. However, counsel must announce appearance for the defendant (not the Commission), while explaining to the jury that counsel is retained by the Commission and that the defendant's interests do not necessarily coincide with the Commission's. Where a defendant is perceived to be in league with the plaintiff, this constitutes a legitimate explanation for the defence's failure to call the defendant, but whether the defendant's absence can ground an adverse inference against the plaintiff under Jones v Dunkel remains an open question.