Incorrect Police or TAC Reports | Moore v Goldhagen
11 min read
6 March 2024
In Moore v Goldhagen [2024] VSCA 25, the Victorian Court of Appeal considered a personal injury claim arising from an alleged collision between a pedestrian and a bus.
The appeal concerned two significant errors:
the trial judge’s failure to give proper weight to the bus driver’s decision not to give evidence; and
the judge’s reliance on disputed statements recorded in police and Transport Accident Commission documents that had not been admitted into evidence.
The Court found that these errors caused the trial to miscarry. It set aside the judgment dismissing Mr Moore’s claim and ordered a new trial on all issues before a judge sitting alone.
What allegedly happened?
On 8 September 2017, Mr Moore was waiting at a bus stop beside Warrigal Road in Moorabbin.
Mr Moore said the bus stopped near the bus stop but its doors did not open. He stepped off the kerb and raised his right hand, making contact with the side of the bus to alert the driver.
According to Mr Moore, the bus then moved forward and struck the right side of his body, causing him to spin around and fall to the ground. He suffered visible grazes to his head, arm and knee.
Mr Moore alleged that the accident caused:
psychological injury;
injuries to his right knee, shoulder and hip; and
a secondary gastric injury.
He sought damages for pain and suffering and economic loss.
The bus driver, Mr Goldhagen, denied negligence and alternatively alleged that Mr Moore was contributorily negligent.
What evidence supported Mr Moore’s account?
Mr Moore gave sworn evidence and was cross-examined for two days.
After the incident, he boarded the next bus. That driver, Mr Bergin, observed that Mr Moore had cuts on his face, congealed blood and appeared agitated. Mr Bergin recalled Mr Moore saying that he had attempted to stop the earlier bus and had fallen over, but did not recall him saying that the bus had struck him.
A report subsequently prepared by the bus operator recorded Mr Moore’s complaint that the driver had failed to open the doors and that the bus struck and knocked him over as it left the stop.
Mr Moore also attended his general practitioner the following day and reported the incident to Victoria Police and the TAC.
No CCTV footage of the incident was recovered.
Why did the County Court dismiss the claim?
The County Court trial occupied 13 hearing days and involved two juries before ultimately proceeding before a judge sitting alone.
The trial judge did not accept Mr Moore as a credible witness. The judge was not satisfied that the incident occurred in the way Mr Moore described or that Mr Goldhagen had been negligent.
In reaching that conclusion, the judge referred to police and TAC records suggesting that Mr Moore had said the bus “mounted the kerb”.
Mr Moore denied making that statement. Neither document was tendered or admitted into evidence.
The judge also placed no significant weight on Mr Goldhagen’s failure to enter the witness box, despite him being the only other person capable of giving direct evidence about how the incident occurred.
Mr Moore appealed.
Were the police and TAC reports evidence?
During cross-examination, counsel for Mr Goldhagen put parts of the police and TAC reports to Mr Moore.
Both reports apparently recorded that Mr Moore said the bus mounted the kerb. Mr Moore repeatedly denied making that statement and maintained that the bus did not mount the kerb.
Counsel later submitted that the contents of the reports had been “read into evidence”. The Court of Appeal rejected that submission.
A question asked by counsel is not evidence. The witness’s answer is the evidence. Where a witness denies an allegation contained in a question, the denial does not prove the allegation.
The police and TAC reports were:
not tendered;
not admitted under the business-records exception;
not admitted under another hearsay exception;
not the subject of an agreement that their contents be read into evidence; and
not proved by calling their authors.
The Court therefore found there was no admissible evidence that Mr Moore had made the alleged prior inconsistent statements.
How does section 43 of the Evidence Act apply?
Section 43 of the Evidence Act 2008 (Vic) permits a witness to be cross-examined about an alleged prior inconsistent statement.
Where the witness denies making the statement, the cross-examining party may seek to prove it through other evidence. The witness must first be given sufficient information to identify the alleged statement and have the inconsistency drawn to their attention.
After Mr Moore denied saying that the bus mounted the kerb, it was open to Mr Goldhagen to attempt to prove the statement by:
calling the relevant police or TAC officer;
seeking to tender the reports; or
applying to reopen his case for that purpose.
None of those steps was taken.
Cross-examination about the alleged statements did not establish that Mr Moore had made them.
How does section 44 of the Evidence Act apply?
Section 44 regulates cross-examination about a previous representation made by someone other than the witness.
The TAC report had been prepared by a third party. Before Mr Moore could be questioned forensically about its contents, the representation had to have been admitted or the Court had to be satisfied that it would be admitted.
No such ruling was made.
If the relevant representation had not been admitted, the restricted procedure under section 44(3) should have been followed. Among other things, that procedure would have required Mr Moore to examine the document and be asked whether he stood by his evidence, without counsel identifying or disclosing its contents.
That procedure was not followed.
Why couldn’t the documents simply be treated as business records?
No application was made to admit either report under section 69 of the Evidence Act, which concerns business records.
The Court noted that any such application may have faced an objection under section 135. One possible issue was the unfair prejudice caused by Mr Moore’s inability to cross-examine the people who prepared the records.
The Court did not decide whether the documents would ultimately have been admitted. Its conclusion was that no proper attempt had been made to admit them during the trial.
How did the trial judge use the inadmissible material?
Despite correctly observing that the reports had not been tendered, the trial judge referred to their contents when assessing Mr Moore’s credibility.
The judge questioned what other source there could have been for both organisations recording that the bus mounted the kerb. The judge also treated the alleged statements as possible alternative accounts of the incident.
The Court of Appeal found that this use of the reports was impermissible. The reports went directly to the judge’s assessment of whether Mr Moore’s account was truthful and reliable.
This was a material error.
Why was the bus driver’s failure to give evidence important?
Mr Goldhagen did not give evidence or call any evidence at trial.
This was particularly significant because the dispute was essentially a contest between Mr Moore and Mr Goldhagen. Mr Goldhagen was the only person capable of directly contradicting Mr Moore’s sworn account of the accident.
Other witnesses gave hearsay accounts of what Mr Goldhagen had said following the incident. However, those accounts were not equivalent to sworn evidence tested through cross-examination.
The Court explained that where a party fails to call a witness whom they would be expected to call:
the Court may infer that the witness’s evidence would not have assisted that party; and
an unfavourable inference otherwise available from the evidence may be drawn with greater confidence.
The absence of the witness cannot fill a gap in the opposing party’s evidence or establish that the missing evidence would have been positively damaging.
However, the failure of a party to give evidence can be particularly significant where that party has direct knowledge of the disputed events and could have contradicted the opposing account.
The Court found that the trial judge should have considered Mr Goldhagen’s failure to give evidence as part of the overall evaluation of Mr Moore’s account.
Did TAC’s acceptance of the claim prove negligence?
No.
Mr Moore argued that TAC’s acceptance of his claim and payment of statutory benefits supported his account of the accident.
The Court expressed significant doubt that TAC’s administration of a no-fault benefits claim could amount to an admission of negligence on behalf of the insured driver.
TAC benefits may be paid without determining who was responsible for an accident. Treating those payments as an admission could also interfere with the efficient administration of the no-fault compensation scheme.
Even if TAC’s conduct could be attributed to the driver, the Court considered that its evidentiary value may have been limited or nonexistent.
The distinction between no-fault TAC benefits and a common law negligence claim should therefore be maintained.
What did the Court of Appeal decide?
The Court found that:
the trial judge failed to properly consider the significance of Mr Goldhagen not giving evidence; and
the judge impermissibly relied on alleged prior inconsistent statements that had not been admitted or proved.
Either error, or both together, was sufficient to establish that the trial had miscarried.
The Court granted leave to appeal, allowed the appeal and set aside the County Court’s orders.
The matter was returned to the County Court for a new trial on all issues before a judge sitting alone.
The Court of Appeal did not determine whether the accident happened as Mr Moore alleged, whether Mr Goldhagen was negligent or whether Mr Moore was entitled to damages. Those matters were left for the retrial.
What does this decision mean for personal injury claims?
The decision demonstrates that:
counsel’s questions and submissions are not evidence;
putting an allegation to a witness does not prove it;
a document does not become evidence merely because it is used during cross-examination;
a disputed prior statement must be proved in accordance with the Evidence Act;
police and TAC records are not automatically proof of what an injured person said;
a court cannot rely on material that has not been admitted into evidence;
a party’s failure to give evidence may be significant where that party could directly contradict the opposing account;
no-fault TAC benefits do not necessarily establish negligence; and
material evidentiary errors may result in a judgment being set aside and a new trial being ordered.
What if a police or TAC report is inaccurate?
Police, TAC, ambulance and medical records can become important in a transport accident claim. However, such records may be incomplete, ambiguous or inaccurate.
An injured person who identifies an incorrect record should obtain legal advice promptly. Depending on the circumstances, it may be appropriate to:
obtain a copy of the complete record;
identify who prepared it;
preserve other contemporaneous evidence;
provide an explanation or correction;
identify witnesses who can confirm what occurred; and
ensure the disputed statement is properly addressed in any court proceeding.
An inconsistency does not necessarily determine the outcome of a claim, but it should not be ignored.
Speak with a Melbourne TAC lawyer
If your account of a transport accident is disputed, early legal advice can help preserve evidence, identify witnesses and address inaccurate police, medical or TAC records.
Bastion Legal assists people with TAC claims and transport accident disputes throughout Melbourne and Victoria. Contact us to discuss the accident and the compensation options that may be available.
How we can assist…
At Bastion Legal, we help everyday Australians navigate complex legal issues with practical, straightforward advice. Our team is dedicated to resolving disputes, protecting rights, and achieving fair outcomes. Whatever challenge you’re facing, we provide clear guidance, strong representation, and practical solutions tailored to your situation.
If you’re facing a situation like the one discussed above, you do not need to face these issues alone. We’re here to protect your interests and work towards the outcome you deserve.
Contact us today for a free consultation and take the next step with confidence.