Fox v Percy [2003] HCA 22

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

BARBARA FOX APPELLANT

AND

MEGAN L PERCY RESPONDENT

Fox v Percy

[2003] HCA 22

30 April 2003

S88/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P Menzies QC with C R Burge for the appellant (instructed by Beston Macken McManis)

J D Hislop QC with P J Nolan for the respondent (instructed by Sparke Helmore)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Fox v Percy

Appeal – Rehearing – Review of findings of fact based on trial judge's assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.

Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.

Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.

Supreme Court Act 1970 (NSW), s 75A.

1. GLEESON CJ, GUMMOW AND KIRBY JJ. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales[1]. The issue in the appeal is whether that Court erred in reversing a judgment of the District Court of New South Wales. By that judgment, the primary judge (Herron DCJ) resolved a factual conflict at trial in favour of the appellant. A subsidiary question arises in the appeal as to whether, if the Court of Appeal was justified in upholding the appeal, the correct order for it to make was for a new trial, rather than the entry of judgment in favour of the respondent.

The background facts

1. Ms Barbara Fox (the appellant) was injured on 11 April 1992 when a horse she was riding came into collision with a Volkswagen Kombi Van driven by Ms Megan Percy (the respondent). The appellant claimed damages for negligence in respect of the respondent's driving of the motor vehicle. The crucial factual contest at the trial was whether the respondent's motor vehicle was on the correct, or incorrect, side of the road at the time of impact. Both the appellant and the respondent gave evidence that, at that time, they were on the correct side of the road. They could not both be right. The appellant's entitlement to damages depended upon the primary judge's accepting her version of the events leading to the collision. 2. The appellant was seriously injured as a result of the collision. The trial in the District Court did not take place until November 1999. It was heard over four days in Moruya, New South Wales. A number of facts, as accepted by the primary judge, were not disputed. The collision occurred on a narrow, unsealed, country road that was about seven metres wide. The respondent was driving her vehicle in a westerly direction, travelling downhill. At the point immediately prior to the collision there was an almost, but not completely, blind left-hand turn. The appellant was proceeding on a large half draught horse in an easterly direction. Immediately behind her, also on a large horse, was a companion, Mr Christopher Murdoch. The head of his horse was close to the near-side rump of the horse that the appellant was riding. Immediately before the collision, the horses were proceeding at about seven kilometres per hour. There was some dispute about the speed of the respondent's vehicle. However, the exact speed is immaterial. The primary judge accepted that it was not excessive to the circumstances[2]. 3. The impact between the van and the appellant's horse happened when they came upon each other as the van turned the corner in the road. The collision was unexpected to the parties. The point of impact between the van and the appellant's horse was roughly head-on. Because that horse, and Mr Murdoch's horse immediately behind it, were both large and heavy, their combined weight approximated that of the respondent's vehicle. The application of the brakes by the respondent together with the impact brought the Kombi Van to a sudden halt. Both horses were forced backwards. The appellant's horse became entangled in the Kombi Van. Subsequently, that horse released itself; but it had suffered fatal wounds and after taking a couple of steps it fell over dead. The appellant was thrown onto the roadway landing at a point immediately in front of the respondent's stationary vehicle. 4. Soon after the collision, an ambulance and the police were summoned to the scene. The ambulance attendants arrived and, as the primary judge recorded, they stated that, when they arrived, the stationary Kombi Van was on its correct side of the road[3]. The police officer who arrived (Constable Peter Volf) interviewed the appellant, Mr Murdoch and the respondent. He noticed, and recorded in a sketch in his notebook, that the respondent's vehicle was on its correct side of the road and that there were 10 metres of skid marks immediately behind it. Those skid marks suggested to Constable Volf "that the vehicle had at all material times … been on its correct side of the road"[4]. This discovery caused the constable to say to the appellant: "It looks like you were in the wrong"[5]. 5. Both the constable and the respondent detected the presence of alcohol in the appellant[6]. This too was noted in the police record. The appellant declined to sign her statement in the police notebook, causing the constable to record that she had "refused to co-operate with Police in enquiries". In evidence, the appellant explained that she was interviewed whilst being helped into the ambulance and felt that the police officer was antagonistic towards her. Later, at the Bega Hospital to which the appellant was conveyed, a blood sample was taken from her. It revealed that, at the time the blood was exacted, the appellant had 0.122 grams of alcohol per 100 millilitres of blood. The primary judge concluded that there was "no doubt that this amount of alcohol in her blood would have affected her"[7]. However, he also concluded that, if indeed she had been on her correct side of the road, her consumption of alcohol was irrelevant to the cause of the collision[8]. 6. The appellant was a person who had a great deal of experience with horses, virtually from her childhood[9]. She was comfortable with the horse she was riding. She had acquired it a year earlier and had frequently ridden it. She was also very familiar with the road on which the collision had occurred. In her evidence, she adhered to her statement that she had been on the correct side of the road at the moment of impact. In her testimony, the respondent also adhered to her version of events. The primary judge was obliged to resolve this conflict of evidence.