WATERSON v BATTEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, MAHONEY and CLARKE JJA 4 February 1988, 13 May 1988 [1988] NSWCA 169 JUDGES — duty to give reasons — scope of that duty — degree of elaboration of conflicts of fact required — motor vehicle accident — which driver was on incorrect side of road — appellant claims that reasons for judgment defective in (a) accepting the necessity of a finding of police dishonesty for a verdict for the plaintiff; (b) in omitting to resolve important conflicts of testimony; and (c) in failing to reconcile alleged inconsistencies within the judgment — held (Mahoney and Clarke JJA; Kirby P dissenting) (1) reasons given are sufficiently elaborate and satisfactory; (2) appeal dismissed with costs. Brittingham v Williams [1932] VLR 237, 239; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited & Anor [1983] 3 NSWLR 378. Selvanayagam v University of the West Indies [1983] 1 WLR 585 (PC); Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond (1986) 60 ALJR 209, and Chambers v Jobling (1986-7) 7 NSWLR 1 considered and applied. Sun Insurance Limited v Massoud, unreported, 9 December 1987; [1987] VJB 152 referred to. Supreme Court Act 1970, s75A. ORDERS (By majority) Appeal dismissed with costs. Kirby P (dissenting) The decision in this appeal is determined by two considerations. Each of them rests upon legal principles which are not in doubt or dispute. But when it comes to giving content to those principles, there is, inescapably, room for differences of opinion. Such differences arise, in part, from the varying circumstances of each particular case. In part, they arise from the inescapably personal reaction by appellate judges to the risks that an injustice has occurred, warranting a retrial. The first of the two principles to which I refer is that judicial officers must give reasons for their decisions. This obligation has sometimes been explained by reference to the need to protect the effective existence of a right of appeal from that decision. See Carlson v King (1947) 64 WN (NSW) 65; Pettitt v Dunkley [1971] 1 NSWLR 376. See also Perez v Transfield (Queensland) Pty Limited [1979] Qd R 444,450. More recently, the High Court of Australia appears to have grounded the obligation in what may be taken to be the normal incidents of the judicial process. See Public Service Board of New South Wales v Osmond (1986) 60 ALJR 209, 213. in this, the High Court followed the broader and more conceptual basis for the obligation suggested by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited & Anor [1983] 3 NSWLR 378, 386. Accordingly, so far as the first principle is concerned, the debate, at least in this State, is no longer about whether judicial officers owe a duty to state reasons for their decisions. Nowadays, the debate concerns the extent of that obligation and (in academic circles and elsewhere) the duty of decision makers who are not judicial officers to give such reasons. The first of these controversies was considered most recently by this Court in Soulemezis v Dudley (Holdings) Pty Limited, unreported, CA, 4 September 1987; [1987] NSWJB 163. See also Apps 2 UNREPORTED JUDGMENTS & Anor v Pilet, unreported, CA, 28 October 1987; [1987] NSWJB 199. More recently it has been considered in the Full Court of the Supreme Court of Victoria in Sun Insurance Limited v Massoud, unreported, 9 December 1987; [1987] VJB 162. The second principle relevant to this case concerns the function of this Court, on appeal, and in particular in setting aside a judgment appealed from where it is of the opinion that no reasons, inadequate reasons or reasons including irrelevant considerations taint the decision under appeal. There is likewise no doubt that the Court has a duty to reach its own conclusion on the facts, for it is conducting (relevantly) a rehearing. See Supreme Court Act 1970, s75A(5). However, the common law recognition of the need for finality in litigation and the desirability of avoiding the hardship which the retrial of cases may cause results in the disinclination without good reason, to disturb a judgment at first instance. Decisions of judicial officers should not be lightly disturbed. This Court has frequently stressed its discouragement of the attempts of advocates to criticise a decision below by an attack upon the way in which the judicial officer has expressed himself or herself in selected passages of the reasons for judgment. Under the pressure of today's court lists, there is simply not the time for fastidious precision in the drafting of reasons. To indulge in too stringent a scrutiny of the words used might simply add to the burden of delay in decision making and needlessly add to appeals, although no substantial wrong or miscarriage of justice has occurred. On the other hand, normally, the judgment under scrutiny is the only means by which the litigants, the appellate court and the community have to understand the justification advanced by the judicial officer at the trial, for his or her decision. And attitudes to the suggested "evil" of "new trials" inevitably vary from one appellate judge to another. See Staniland v Kentucky Homes Pty Ltd, unreported, CA, 2 December 1987; [1988] NSWJB 17. In the response of appellate judges to the content and scope of the judicial obligation to give reasons for a decision and in fixing the limits of tolerable error, opportunities lie for different conclusions based upon precisely the same facts. There is nothing remarkable in this. It is as well to recognise at the outset the imprecision of the legal principles being applied. However expressed, their language still leaves a large scope for differing opinions concerning criticisms of the adequacy and contents of the reasons for decision under appeal. I called differences of this kind to attention in Bromley v Tonkin & Ors, unreported, CA, 15 December 1987; (1988) NSWJB 8 where a number of earlier illustrations of the differences were offered. Cf 5 & M Motor Repairs Pty Ltd & Ors v Caltex Oil (Aust) Pty Ltd & Anor, unreported, CA, 11 March 1988. The present appeal is a further illustration. By the standard which I accept to be required by the law, I consider that the judgment under appeal discloses an inadequacy of relevant reasons, reference to inconsistent reasons and reliance upon irrelevant considerations so as to produce such a risk of injustice as I do not consider to be acceptable. This conclusion necessitates the setting aside of the judgment below. I reach that result with regret because in many other ways the decision under appeal is admirable in its attention to detail. In reaching my conclusion, I make every proper allowance for the advantages which the judicial officer conducting the trial (Master Monaghan) had both in seeing witnesses and in hearing all of the evidence in sequence, I also bear in mind the strictures of earlier decisions against treating the judgment under appeal as if its language had been honed in countless hours of reflection and revision. A practical standard must be adopted. URJ WATERSON v BATTEN (Kirby P) 3 But the suggested "evil" of a new trial must be weighed against an even greater "evil" of permitting a decision to stand which is, in several respects, unsafe and demonstrates apparent error in the processes of fact finding and reasoning which lead to its conclusion. That the case is of significance for the appellant may be seen from the treatment of the subject of damages by the Master, against the contingency that this Court reversed his decision on appeal. In such a circumstance, the Master, with helpful elaboration, indicated that he would have entered judgment in favour of the appellant (plaintiff) in the sum of $207,217.66 if he had concluded that the appellant was entitled to judgment. He did not so conclude. He therefore entered judgment against the appellant, It is that judgment which the appellant challenges in this appeal. Although the judgment, and the reasons which preceded it, refer only to "the defendant", it must be taken that judgment has been entered in favour of each of the respondents who were the defendants at the trial. The first respondent was the driver and the second respondent was the owner of a motor vehicle which on 2 July 1981 on the Wiseman's Ferry Road, near Kulnura came into collision with the appellant's motorcycle. The truthfulness of the parties The appeal was argued (in terms of an amended notice of appeal which the Court, without objection, permitted the appellant to file) upon the basis of two significant attacks on the reasons given by the Master for rejecting the case of the appellant and preferring the case of the respondents. As the Master properly stated, this was not a matter where any compromise between the conflicting cases of the parties was possible. It was not a case where contributory negligence was relevant. The first respondent's case was that immediately prior to the relevant collision, the appellant was proceeding on the incorrect side of the road, apparently because he was momentarily distracted by waving to a woman in a house adjoining the road. According to the appellant, although he was close to the centre line, he was on his correct side of it. Accordingly, upon the appellant's case it was the respondent who had struck him on her incorrect side of the road. If the appellant's case was believed, the respondent was certainly negligent But if the first respondent's evidence was preferred, this would clearly have entitled the Master to proceed to enter the judgment for the respondent, as he did. Had the Master simply rested his judgment upon his impression of the evidence of the appellant and of the first respondent in the witness box, preferring the latter to the former, such a decision would almost certainly have been impervious to interference, on appeal, by this Court. In Baumgartner v Baumgartner (1987) 62 ALJR 29, 33, the High Court of Australia has reiterated the primacy of tide assessment by judicial officers conducting the trial, in the resolution of conflicts in testimony. There are similar reminders of this primacy in numerous recent authorities both in the High Court (see eg Taylor & Ors v Johnson (1983) 151 CLR 422, 441; Brunskill & Anor v Sovereign Marine & General Insurance Co Ltd & Ors (1985) 59 ALJR 842 and in this Court. See eg Metropolitan Water Sewerage and Drainage Board v Hash, unreported, CA, 8 October 1987; [1987] NSWJB 221 but cf Chambers v Jobling, (1986) 7 NSWLR 1. However, the Master did not adopt this approach. Consistent with the modern (and in my opinion preferable) approach to the assessment of truthfulness on the part of witnesses he instead proceeded to examine the evidence in order to explain the way in which his mind was brought to the conclusion that the first respondent's case was to be preferred to that of the appellant. In doing so, the 4 UNREPORTED JUDGMENTS Master at no point indicated that he relied, in reaching his conclusion, upon the impression which the appellant had made upon him, whether as honest or dishonest, deliberately misleading the court or simply confused. This is not, in my opinion, a case in which the conclusion reached must necessarily have depended upon the assessment made of the truth telling either of the appellant or of the first respondent, It is perfectly possible, indeed likely, that the Master, from the evidence and from the demeanour of those witnesses, was unable to determine which was telling the truth. Even the "lynx eyed judge", scrutinising the visages of witnesses cannot readily decide such matters from appearance, Safer by far was the course which the Master actually adopted, namely of examining the evidence as a whole and particularly the way in which the respective cases of the parties had been presented to him. The consequence of so proceeding is a more rational approach to decision making and one which recognises the inescapable limitations in assessing truth-telling in the artificial environment of a courtroom. However, it is also an approach which permits this Court's scrutiny of the reasons offered. In the absence of expressed or necessary reliance upon such considerations as appearance and demeanour, this Court, on appeal, must examine the reasons for the decision below in order to consider whether any error is shown in those reasons that would warrant interference. I acknowledge that the Master said that he found the first respondent to be a "truthful witness". But this statement must be judged in the light of his failure to resolve important conflicts of testimony, particularly in relation to the position of Mrs Dornan to which reference will be made. Had the Master perceived the inconsistency in his reasoning which I will elaborate, it may have caused him to reconsider his assessment of the truthfulness of the first respondent's testimony. I can therefore approach the case unimpeded by his statement that he found her a "truthful witness". Putting it shortly, the appellant suggested that an analysis of the Master's reasons shows errors of commission and omission. It is first complained that, illegitimately, he imposed upon the appellant the burden of proving something which the appellant was not, in law, obliged to prove. In this way, it is said that the reasons given showed error. Secondly, it is complained that the reasons given, although long, were not, in critical respects, adequate and convincing and such as properly to disclose the processes by which the Master came to his conclusions. I shall deal with these complaints in turn. Incorrect assignment of a heavy burden of proof The first complaint relates to the following passage in the Master's judgment:- 'Now I accept the evidence of Const Dell that that is what the plaintiff said to him. I do not accept that Constable Dell acted dishonestly in his investigation of this accident. To accept the plaintiff's case, I would have to find improper conduct on Constable Dell's part. That I do not find." The appellant attacks this passage. He contends that it evidences the imposition upon him of an unacceptably onerous duty of proving that a police constable who gave evidence acted dishonestly and that, without such a finding, he could not find in favour of the appellant. The appellant complains that this indicates the reliance by the Master on an irrelevant consideration (namely the criterion of the police Constable's honesty) in determining the question whether the appellant, by the civil standard of proof applicable in such cases, had established negligence on the part of the first respondent. URJ WATERSON v BATTEN (Kirby P) 5 The proof that a police constable acted dishonestly in his investigation of a motor vehicle accident would, because of the serious consequences which would follow, ordinarily require establishment of that fact to the very high degree of satisfaction appropriately assumed by a court before arriving at such a serious conclusion. See eg Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, 368. Clearly, in law, it was not the obligation of the appellant to establish, in order to prove his case, that Constable Dell or any other person involved in the case had acted in an improper or dishonest way. To impose such an obstacle at the gateway to success in the action would be a serious error, especially because of the high standard of proof which the law would impose upon the appellant before he could establish such a contentious case to the Master's proper satisfaction. But is this what the Master meant by the passage complained of? That passage immediately followed the record of two statements which Constable Dell wrote out in his notebook soon after the accident. The statement taken from the first respondent included the positive assertion that the appellant's motorcycle was first seen "2' over the centre line in my lane". The appellant's statement, also in the notebook (which the appellant declined to sign) read:- "Whilst I was negotiating a left hand bend in the roadway I saw a vehicle coming in the opposite direction. It appeared to be very close to the center (sic) line. I tryed (sic) to avoid the veh (sic) and swing off but it was to (sic) late and I collided with the drivers (sic) front guard." Earlier in his judgment, the Master had described the way in which the respective cases of the parties had been conducted at the trial. Relevantly, he observed:- "The police officer who investigated the accident was Constable Neil Arthur Dell. He was called in the Defendant's case, and was subjected to rigorous cross examination by Mr Kenny QC to whom he adopted a defensive attitude which I find understandable - bearing in mind the accident occurred some five years ago. Even earlier the Master had noted:- I should interpolate here, it emerged during the hearing [that the first respondent's] boyfriend was a police officer, Larry Cook, who knew the reporting officer, Constable NA Dell. Reference to the transcript of evidence shows that there is substance in the Master's description of the cross examination of Constable Dell as "rigorous". The cross examination suggested, from the outset, that Constable Dell had recognised the first respondent as a woman who was going out with a fellow policeman. The suggestion was, clearly, that he had favoured her because of her association with a police colleague. Specifically, it was suggested that Constable Dell had gone to the hospital to which the appellant had been taken with a statement already written out. The constable denied that assertion. But it is clear that because of his injuries, the appellant was indeed removed from the scene of the collision to hospital. The first respondent, on the other hand, clearly made a statement to Constable Dell at the scene. This statement is consistent with her case at the trial. It supports the decision which the Master reached. Of course, it was not logically necessary for the Master, in order to accept the appellant's case to conclude that the police constable was lying and had been dishonest. Whilst it is true that the appellant's statement, recorded in Constable Dell's notebook, does not positively assert that the first respondent was on the incorrect side of the road, it is equally true that the statement is perfectly consistent with that impression. True, one would have expected the appellant to 6 UNREPORTED JUDGMENTS have made a point of the fact that the first respondent was on the incorrect side of the road, if such were the case. But it is also true that we are now scrutinising this statement with a great deal of wisdom after the event. At the time, even if it be accepted as an accurate record of what the appellant told Constable Dell, it would be consistent with a version of the events by which the first respondent was travelling very close to the centre line, but on the incorrect side of it Indeed the sentence follows ("I tried to avoid the vehicle and swung off but it was too late") would be consistent with proper attention on the part of the appellant which led to the attempt to avoid the first respondent's vehicle but an inability to do so because of the position which that vehicle had taken, ie on the incorrect side of the road. If this were all that the appellant could point to in criticism of the Master's reasons for judgment, I should not be inclined to disturb the judgment But, because the second way in which the appellant attacks the Master's reasons is conclusive for my opinion, it is sufficient to say on this first point that I consider that the reasons given contain errors which fortify my opinion on the second point of challenge. They produce, together, a conclusion that the judgment is unsafe and ought not to stand. No matter how the appellant's counsel conducted the case at the trial and no matter what his attack on the credit of the police constable, a conclusion of dishonesty on the part of the constable was not a prerequisite to judgment in favour of the appellant. It was not even a prerequisite to judgment resolving the apparent inconsistency between the statement taken by Constable Dell from the first respondent and, as it is said, from the appellant. That inconsistency can be otherwise explained. By adopting such a stringent precondition to the acceptance of the plaintiff's case, I am inclined to the opinion that the Master erred. Inadequate and inconsistent reasons The second basis of challenge concerns the content of the Master's reasons for judgment and his analysis of the evidence of three witnesses called for the appellant at the trial. The first witness dealt with was Mrs Susan Jane Martens. As described by the Master, she had been travelling in a vehicle west along Wiseman's Ferry Road on the way to a school to pick up her children when she saw a car on the road and then slowed down. She saw a motorbike further down the road, and a man lying in the gutter under whose head she placed a pillow. The Master went on:- "Her evidence did not assist the Court to determine where on the roadway the collision took place. She spoke of debris on the road, but in cross examination she was an unsatisfactory witness. I reject her evidence." The Master does not say why he rejected Mrs Martens' evidence except that she proved unsatisfactory during cross examination. The appellant criticised this statement, claiming that it was the Master's duty to explain his rejection of Mrs Martens' evidence more amply in order to indicate why the evidence was rejected. However, a reference to the actual evidence of Mrs Martens certainly gives warrant to the conclusion reached by the Master. In her evidence in chief she said that she had waited for half an hour until the ambulance came. During this time she had spoken to a young woman, presumably the first respondent, who said to her "I am - uninsured. What will my boyfriend say?". She had found one of the appellant's boots on the roadway. It was "in the middle of the lane that he was travelling on". She returned it to him. Asked whether she had seen some debris in the area she described broken glass:- URJ WATERSON v BATTEN (Kirby P) 7 "Q. Where did you see that? A. It was basically on the side of the road that the motorbike was travelling and, well, yes, just pretty much where the bike had actually hit the ground (Objected to). Q. You saw the debris? A. Saw the debris on the road. Q. And which side of the road was it on? A. It was on the lane that the motorbike was travelling on. Q. Did you see any debris anywhere else? A. Not that I took any notice of, no." In cross examination, however, Mrs Martens departed somewhat from the evidence of the position of the glass which was important as a possible objective sign for fixing the site of impact:- "Q. When you say that there was broken glass off the motorbike, what did it look like. What colour was it? A. Orange off the blinkers. Q. Where did you see this? A. It was on the lane that the motorbike was on. Q. Yes, but what part of the lane? A. Pretty much in the middle of the road, its sort of dispersed. Where the bike actually hit the ground there was -" The witness conceded that she had not seen the bike hit the ground. She was pressed:- "Q. Over what sort of an area was it spread? A. I can't really say. Q. Give us an idea? A. There was bits and pieces spread from one side of the road to the other I presume. Q. From one side of the road to the other. That is from one side of the bitumen road across to the other side of the bitumen, is that right? A. Yes." Later she agreed to a question asked by the Master that she could see glass glistening in the sun fragmented across the road. But then the cross examiner pressed his luck:- "Q. There was more in one particular spot than another. A. Yes. Q. I ask you again, where do you say that particular spot was? A. It was on the lane that the motorbike was heading, whichever that direction that is." Although it would have been open to the Master to have found that the witness ultimately adhered to her evidence in chief, it was also open to him to conclude that her precise recollection of the site of debris (glass) was so imperfect as to be unhelpful in resolving the serious question of the impact of the collision. In these circumstances, the Master's rejection of Mrs Martens evidence was open to him. The complaint about the inadequacy of reasons is, in this respect, without merit. The reference to her unsatisfactory testimony is a sufficient indication, in an appropriately shorthand way, of the reasons for his conclusion in this regard. The appellant's complaint about the Master's treatment of another witness, Mr Dornan is less readily disposed of. The relevant paragraph of the Master's reasons, pertinent also to the complaint about the treatment of Mr Dornan's wife, is quite short. It should be set out in full:- "Mr Stephen Dornan was called by the plaintiff. He did not see the accident but was told of its occurrence by Andrew Smith and immediately went to the scene. There he saw the plaintiff in the table drain lying a metre off the road about 100" from his driveway, the bike was further up the road and a car on the side of the road opposite his property. Mr Dornan went in the ambulance to the hospital with Mr Waterson. About an hour and a half later he inspected the scene of the accident, and the following morning took photographs tendered as Exhibit "J". Mr Dornan's evidence taken in its entirety did not assist the Court in determining where on the road the collision took place. Mr Dornan's wife Laura Anne Dornan heard the crash. She did not see the accident occur. I find her evidence did not assist the Court." 8 UNREPORTED JUDGMENTS In the case of Mr Dornan's evidence, there is no clue, even by a shorthand reference, of the reason why his evidence does not "assist". But is the explanation sufficiently found by reference to the content of that evidence? In his evidence, Mr Dornan said, in chief, that "most of the debris" was "'on our side of the road". It was common ground that this side was the side upon which the appellant was travelling on his motorcycle. The presence of the debris there would certainly suggest that the impact occurred there, just as the appellant had said. It is true that Mr Dornan could not identify marks on the road to demonstrate the place of impact. He said that "there was no marks, no debris on the road". However, in its context, it is clear that this is a statement of the condition of the road after he had cleared the debris off, presumably for the safety of passing traffic on a busy highway:- "Q. Did you see anything on the roadway? A. No, there was no debris. I cleared that off and checked the road before, when I first arrived, to make sure that cars could pass. There was no marks, no debris on the road." In critical respects, Mr Dornan's evidence was in conflict with that given later by Constable Dell. An opportunity was presented to cross examine him again; for he was recalled on the following day, after Constable Dell's evidence. Yet he was not cross examined as to his testimony concerning the absence of skid marks although this clearly conflicted with the testimony of Constable Dell. Crucial issues of fact were therefore presented for resolution by the evidence of Mr Dornan. They included the position of debris (as he claimed) on the appellant's side of the road and the absence of skid or other marks on the road (in Contradiction to the testimony of Constable Dell who had claimed, although he did not record it at the time, that there were three marks on the first respondent's side of the road. The latter conflict became the more important because Constable Dell agreed that it was impossible to identify in photographs which Mr Dornan took on the day following the collision any of the three marks on the road which he asserted that he saw. It is in the circumstances of this conflict of evidence that the appellant attacks the Master's statement that "Mr Dornan's evidence taken in its entirety did not assist the Court in determining where on the roadway the collision took place". It was argued for the respondents that Mr Dornan's evidence rose no higher than an acknowledgement that he did not see marks, as distinct from a positive statement that there were no such marks. But it is clear that Mr Dornan was looking for objective signs on the roadway. He did so first by torch on the very evening of the impact. He did so again on the following day, when he took a number photographs. Because no cross examination was directed at Mr Dornan to suggest that his evidence concerning the situation of debris or the absence of appearance of marks was erroneous, it was wrong for the Master, as a matter of fairness, to reject his testimony without giving an explanation as to why he did so Cf Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [1983] 1 NSWLR 1, 26. In my opinion this is a case where it would be an error for the tribunal of fact to reject evidence upon which there had been no relevant cross-examination to suggest its falsity or other error. Cf Poricanin v Australian Consolidated Industries Limited [1979] 2 NSWLR 419, 426 f. But if these difficulties exist in the Master's treatment of Mr Dornan, the difficulties in the case of Mrs Dornan's evidence are even more acute It will be remembered that her testimony was dismissed peremptorily with the finding:- "She did not see the accident occur. I find her evidence did not assist the Court." URJ WATERSON v BATTEN (Kirby P) 9 The problem with this finding is that it suggests by inference the Master's acceptance of Mrs Dornan's clear evidence that she did not see the accident occur, because she was in her garage. Yet it was the central contention of the first respondent's case (and her explanation of how it came about that the appellant crossed to the incorrect side of the road) that, at the critical moment, he was waving to a woman in an adjacent home. This woman was identified by the first respondent as Mrs Dornan:- "Q Have you recognised anyone here in Court or in the precincts of the court? A. yes, someone that looked like her, yes, very much so Q. Who was that? A. Mrs Dornan. Cross Examination. Mr Kenny Q. Do you say that it was Mrs Dornan who waved to the plaintiffs A. Yes, definitely. Q. You are quite clear about that? A. Yes. Q. How long was that before the accident? A. Seconds. Q. Seconds? A. It was very quick. Q. So, is this the position, that Mrs Dornan waved and straight away you and the cycle met, collided? A. Sorry? Q. I just want to get it clear - where was Mrs Dornan standing? A. In her property. Q. Whereabouts in her property? A. Out the front of her house. Q. How far from the road? A. A few metro." Mrs Dornan's evidence, on the other hand, could not have been in greater conflict with this testimony. This is what she said:- "Q. What was the first thing you knew about the accident? A. I heard a crash. Q. Where were you when you heard the crash? A. Putting the car in the garage. Q. What did you do? A. I went into the house, through the house and walked up to the road and I could see an accident occurred. I came back and phoned the ambulance. I went back up to the road came back and phoned the police." In cross examination she was tested on this evidence:- "Q. Could you have been out of the car when you heard the crash? A. I guess I could have. I would have to be out to here (sic). Q. Is your garage visible from the roadway as one comes along the road in the direction Mr Waterson was travelling? A. Yes. Q. Would someone standing outside the garage be visible? A. Yes. Q. As one comes up to the curve that Mr Waterson was about to negotiate, would someone standing outside the garage be visible to a motor bike driver such as Mr Waterson? A. Not where the curve is. Q. Before the curve? A. Yes. Q. Did you see where your children got out of the car before you? A. No, they were after me. Q. You could have been out of the car when you heard the crash? A. Yes. Q. Would you have been out of the garage? A. No, I was in the garage. Q. Definitely remember that? A. Yes." It will be seen that an important factual question was therefore posed for resolution. It was whether, as the first respondent claimed, the appellant was waving to Mrs Dornan or whether he was not. It would be unlikely, to say the least, that he would be waving to her when she was not visible and was in her garage. She was certainly not waving to him. According to her testimony, she did not see him. 10 UNREPORTED JUDGMENTS In such circumstances, the Master's finding that Mrs Dornan's evidence did not assist the Court because "she did not see the accident occur" poses a serious problem. If she did not see the accident occur, that suggests acceptance by the Master of the case for the appellant, viz, that Mrs Dornan and the appellant were not exchanging waves and that Mrs Dornan was in fact inside her garage, as she claimed. If, on the other hand, the Master did so conclude, it was vital that he should reconcile that conclusion with the first respondent's evidence about the exchange between the appellant and Mrs Dornan. That evidence was not equivocal:- "As he approached the right hand bend I saw him turn to a house which was on the left hand side. He waved to a lady. She waved back. Then he wasn't watching the road, he started to veer over, crossing the double yellow lines and started coming towards me. He hit me..." It was suggested in argument that all the Master was saying was that, upon Mrs Dornan's version of the facts she did not see the appellant and so could not assist the Court. But this is not what he actually says. If the matter were an issue incidental to the case, a side issue or something of no great consequence, a slip of this kind might not be important. The inconsistency could be dismissed as insignificant. But the dispute is at the core of the conflict between the respective cases of the appellant and the first respondent. In the result, the Master's resolution of it is left in an entirely unsatisfactory and irreconcilable state. He accepts the first respondent. But by inference he rejects her evidence of the exchange between the appellant and Mrs Dornan. He does not reconcile that apparent inconsistency. Yet if he does not reject Mrs Dornan's evidence, it was his duty, as it seems to me, such an acute conflict being presented for his decision, to say why he preferred the first respondent's version to hers. The Judicial Committee of the Privy Council suggested in Selvanayagam v University of the West Indies [1983] 1 WLR 585 that it was sufficient for a trial judge, faced with conflicts on various issues of fact, to recite the evidence in detail and to state his ultimate conclusion. However, such is not the law in this State, as McHugh JA demonstrated in Soulemezis (ibid, 14). Dealing with the extent of the duty to give reasons, McHugh JA adopted what Mahoney JA had said in Tatmar (above, at 386) that such duty is related "to the function to be served by the giving of reasons". McHugh JA went on:- "[M]ore elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal. In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent on the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiffs credibility. But if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough." URJ WATERSON v BATTEN (Kirby P) 11 In the present case, although credibility is clearly involved, the Master (properly, in my view) embarked upon an analysis of the facts which had been laid before him in order to evaluate the strength of the competing cases of the parties, by reference to those facts. Unless the steps in the reasoning process are sufficiently laid bare, this Court, in conducting the appellate review to which the appellant is entitled, is left to speculation, derived from collateral observations. Cf Wright v Australian Broadcasting Commission & Anor [1977] | NSWLR 697, 701, 713. And apart from the Court, the losing party is left with a legitimate grievance. He would look at these reasons and see that two witnesses whom he called, and who gave detailed evidence, are dismissed as of no help to the Court. Yet each of them presented, by their evidence, an important factual issue for resolution. If resolved in the appellant's favour, those factual issues would be very significant for the probabilities about the crucial question of whether the appellant was, or was not, on his incorrect side of the road. Puzzlement about the reason for the dismissal of this evidence would turn, however, to alarm when, in respect of the evidence of Mrs Dornan the Master accepts that she did not see the accident and, by inference, that she was in her garage as she swore, yet rejects without reason the implication which this conclusion has for the case of the first respondent This unresolved conflict, concerning an issue crucial to the contest at the trial could, legitimately in my view, send the litigant away from the Court not only "disappointed" but "disturbed". See Connell v Auckland City Council [1977] 1 NZLR 630, 634. Picking up a point I made in Soulemzis, the first respondent urged that her case could be distinguished on the basis that here there is an appeal on the facts whereas in Soulemezis the appeal from the Compensation Court was limited to questions of law. However, McHugh JA in the majority in Soulemezis clearly holds, in the passage just cited, that the provision of an appeal against findings of fact increases, and does not diminish, the duty of the trial judge to elaborate and explain the findings where matters other than credibility are relied upon in reaching the decision. In a careful judgment, the Master endeavoured to provide those reasons. However, in my view, at a crucial stage in doing so, he stopped short of explaining the necessary processes of his reasoning. This inadequacy of reasons, together with the internal conflict in the reasoning to which I have pointed and, as well, the apparent adoption of an approach to the onus of proof which was erroneous, justify and require a setting aside of his judgment and a new trial. Orders I have given consideration to whether this would be an appropriate case in which to enter judgment in favour of the appellant I do not believe that this is a case where it would be safe to do so having regard to the serious conflict which remains unresolved between the testimony of the witnesses to whom I have referred. That conflict needs to be determined by a judicial officer who has seen them and considered all of their evidence, in sequence. The appellant acknowledged this. In his amended notice of appeal he sought merely a new trial. That is what I would order. The orders which I would favour are:- (1) Appeal allowed. (2) Judgment in favour of the respondents set aside. (3) Matter returned to the Common Law Division for retrial generally. (4) The respondents to pay the appellant's costs of the appeal. (5) The costs of the first trial to abide the outcome of the second. 12 UNREPORTED JUDGMENTS Mahoney JA This case raises yet again two issues which, in recent years, have continued to be raised in this Court: the significance of the advantages of the trial judge in finding facts; and the reasons he must give for his conclusions. I agree with the judgment of Clarke JA. However, in view of the submissions which have been made and what is suggested to flow from them, I shall add reasons of my own. The present is, on the face of it, a simple case. The plaintiff's motor cycle struck the defendant's car on Wisemans Ferry Road. The issue on which, as all are agreed, the plaintiff's case turns is whether, at the time of the collision, his cycle was on its correct side of the road. If it was not, he fails. All of the evidence (I put aside the evidence on damages) was directed to this. The Master came to his conclusion, that the plaintiffs cycle was on its wrong side, for two simple and (as I think them to be) compelling reasons: because he thought the plaintiff was not and the defendant was a credible witness; and because the plaintiff's evidence did not accord with what he told the police constable at the time. On each of these points he was, I think, correct. Together they warrant his judgment for the defendant. But it has been put that he was wrong and that there must be a new trial. And, in support of this submission, there have been called in aid the two matters to which I have referred. If I may put the matter shortly but, as I hope, with due deference to those by whom the submissions were put, the reliance on the first is, in this case, misplaced and the second has, if at all, only a collateral relevance to it. At the risk of putting again what has been put in a number of recent cases, I shall refer shortly to the role of this Court and the significance in it of the two matters referred to. In a case such as this, the appeal to this Court Is a re-hearing. It is for this Court, in the sense indicated in Warren v Coombes 142 CLR 331, to make its own findings of fact and to give judgment accordingly. What, then, is the relevance of the reasons of the trial judge? An appellate court will, of course, be assisted by the trial judge's reasons as by the reasons of a judge who has considered the issues which are raised by the case, and it will not depart from his reasons unless, in the relevant sense, it is satisfied that they are wrong. But, in the sense explained in Warren v Coombes, it is in the end for this Court to form its own conclusions of fact. However, in deciding whether the learned judge was wrong, an appellate court will have in mind (as I shall describe it) the "advantages principle", ie, that he had the advantage of seeing and healing the witnesses which the appellate court does not. It will therefore be satisfied that it is right and he is wrong only after it has, in the manner which has been explained in the cases: see, eg, Chambers v Jobling (1986-7) 7 NSWLR 1; given proper weight to that fact and what it entails. If this be the role of this Court in such a case, it follows that the "reasons principle" (as I shall describe it) has conceptually no bearing - or, at the most, only collateral bearing - on what this Court is to do. Kirby P and Clarke JA, whose judgments I have read, have referred to a number of cases in which the "reasons principle" has been considered. And there are, of course, many others. It may be that the reiteration of views as to the "reasons principle" and what it entails has led to sight being lost of what that principle is and what it involves. In the discussion of it two things have emerged. First, t is accepted that, if a trial judge fails to state his reasons for a decision, there may be thereby involved an error of law. Whether this is so was what was in issue in the seminal case of Pettitt v Dunkley [1971] 1 NSWLR 376. URJ WATERSON v BATTEN (Mahoney JA) 13 In addition, in their consideration of the "reasons principle", the courts have said that it is part of the discharge of the judicial function, in proper cases and to the proper extent, for the trial judge to state the relevant facts found by him and to give reasons for his finding of them. This is no new insight over fifty years ago Cussen ACJ, in delivering the judgment of the Full Court of Victoria in Brittingham v Williams [1932] VLR 237, at 239, said: "We must not be taken as laying down as a universal rule that a Judge is bound upon request to give reasons for his decision. A case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person; or a claim or defence may be presented in so muddied a manner that it would be a waste of public time to give reasons; and there may be other cases where reasons are not necessary or even desirable. But in many cases, of which this was one, we agree with Irvine CJ in Donovan v Edwards [1922] VLR 87 that a judicial officer should state the facts he finds and the reasons for his decision. Such a statement is desirable for the information of the parties, and in order to afford assistance to the Court of Appeal in the event of there being an appeal" Brittingham v Williams was cited with approval in the judgments of Pettitt v Dunkley: at 380, 388. In principle, therefore, the "reasons principle" has nothing to do with a case in which this Court's function is concerned not with the correctness of the trial judge in point of law but with what, in its view, is the proper conclusion of fact. The cases in which the principle has been discussed have been concerned, in so far as the discussion of it was relevant to the result, with what a trial judge must do in order to avoid error of law. And the thrust of them has followed the line indicated by Cussen ACJ in Brittingham v Williams. This does not mean that, though the "reasons principle" as such has no application, it may not be relevant for this Court to consider the cogency of the reasons given by the trial judge. It may go, eg, to the deference which an appellate court conventionally pays to the conclusions of a trial judge and to whether, in the relevant sense, it is satisfied that he was wrong. And, in some cases, the cogency of his reasons may affect the extent to which his findings in relation to a matter within the "advantages principle" will be accepted by the appellate court. It is accepted that an appellate court is not required to accept the findings of a trial judge on such matters where he has "failed to use" or "misused" his advantage: see the cases referred to in Chambers v Jobling at 27-8. His reasoning, or the lack of cogency of it, may sometimes warrant such a conclusion. That, in turn, may lead to his conclusion as to credibility being put aside and that may lead to a different finding of fact by the appellate court. But, such matters apart, the cogency of the trial judge's reasons will ordinarily have little relevance, in principle, to what this Court must do. What, then, is the significance of the reasoning of the Master in the present case? The suggestion has been, in the main, that the Master's reasoning was defective in respect of two things: the police constable's evidence and the evidence of Mr and Mrs Dornan. The facts are outlined in the judgments of my brethren and I shall not repeat them. It was submitted that the Master's statement that, "To accept the plaintiff's case I would have to find improper conduct on Constable Dell's part" was wrong. That statement was, I think, justified. The significance of the constable's evidence, taken from his official notebook, was that the plaintiff did not suggest to him that the defendant's car had been on the wrong side of the road. The plaintiff's case 14 UNREPORTED JUDGMENTS in this regard was that he did, that the constable had not recorded that in his notebook, that the constable had asked the plaintiff to sign a record which, the plaintiff said, was inaccurate, and that despite the plaintiff refusing to sign it, he did not correct it. And, the suggestion was, the constable had done this from friendship with the defendant or her boyfriend. On this basis, the plaintiff's case suggested improper conduct by the constable. It was, of course, in the abstract possible to accept what the constable said without finding that the events were as the plaintiff suggested. But to do so would be to ignore the thrust of the plaintiffs case on this important issue and (if this be relevant) to leave the parties in doubt as to the grounds of the decision of the court upon it What the Master said was directed to the plaintiffs case as it was put to him. I do not doubt that the parties understood what the Master meant by what he said. As to the evidence of Mr and Mrs Dornan, I agree with what has been said by Clarke JA. I shall refer only to the suggestions made in respect of Mrs Dornan. The plaintiff had conceded that he might have crossed to his wrong side of the road if he had been distracted by, eg, looking at people nearby. Counsel therefore pursued the question whether there were such people nearby. The defendant said she saw Mrs Dornan nearby. Mrs Dornan said that, at the precise time, she was not there, though she was there immediately afterwards. The suggestion is therefore, I think, that the defendant was wrong in this; that if she was, she should not be accepted in what she said on other things; that therefore it. was the duty of the Master to pursue this issue; and that therefore the Master was wrong, and his reasoning defective because he did not pursue this and similar issues to their ultimate ends. His failure to do so should, as I understand the suggestion, cast doubt on his judgment on other matters and, in particular, upon his failure to accept the plaintiff as a credible witness as against the defendant. These suggestions should not, I think, be accepted. There may have been many reasons why the Master did not pursue this question. He may not have been impressed by Mrs Dornan, notwithstanding what was done or not done in the cross-examination of her. He may simply have concluded that, even if the defendant was wrong on this matter, it did not lead to the conclusion that the plaintiff was a credible witness. And it is possible, by speculation, to find other reasons why the Master did what he did. He may have been simply of the view, long and commonly held, that it is not necessary for a trial judge to pursue every collateral issue to its end and that, whatever be the importance of this issue, it would not alter his view of the credibility of the plaintiff. But, the suggestion has been, he should have pursued this issue to maintain an appearance of fairness or for reasons of that kind. I agree with Clarke JA that he was not required to do so. But, if he was, his failure is irrelevant unless his failure to articulate his conclusions upon, or upon the relevance of, this collateral issue, should lead to the rejection of his conclusion that the plaintiff was not and the defendant was worthy of credit. With respect, I do not think that it should. I agree with the orders proposed by Clarke JA. Clarke JA This appeal is brought by the unsuccessful plaintiff from the the decision of Master Monaghan on 19 November 1986 directing the entry of judgment in favour of the defendant in an action brought by the appellant claiming damages for injuries received when involved in a motor vehicle accident which occurred at about 4.30 pm on Thursday 2 July 1981 on Wisemans Ferry Road, Somersby, about half a kilometre west of Grants Road. URJ WATERSON v BATTEN (Clarke JA) 15 Prior to the accident the appellant had been driving his motor cycle in a westerly direction in Wisemans Ferry Road at about 80 kilometres an hour and almost immediately after he had traversed a left hand bend his cycle collided with the front of a vehicle driven by the respondent east in the same road at about 60 kilometres an hour. The appellant alleged that the accident resulted from the negligence of the respondent in driving her vehicle onto the wrong side of the road as she approached the right hand curve. This was denied by the respondent who, for her part, contended that the appellant in negotiating the curve swung onto the wrong side of the road. The Master was therefore called upon to resolve a vigorous conflict in order to determine whether the appellant had discharged the onus of establishing that the accident was caused by the negligence of the respondent In the event the learned master accepted the respondent's evidence, having found her to be a truthful witness, and concluded that the appellant himself had crossed onto the wrong side of the road and was therefore the cause of the accident. The appellant has challenged this decision contending that it was vitiated by error. By his first ground of appeal the appellant contends that the decision of the learned Master was unreasonable in that he failed to give consideration to, and resolve, conflicts between the competing evidence on questions relevant to the issue of negligence and, in effect, failed to decide the matter at all. This complaint is tied up with an assertion that the Master failed properly to comply with his obligation of furnishing reasons for his ultimate decision. It is this latter ground which constituted the primary thrust of the challenge to the judgment and, insofar as each of the other grounds are interrelated with it, it is convenient to deal with this ground at the outset. A series of recent decisions has made plain the obligation upon a trial judge in general to give reasons for his ultimate decision (Pettit v Dunkley, [1971] 1 NSWLR 376; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd, [1983] 3 NSWLR 378, particularly per Mahoney JA at 385-6; Soulemezis v Dudley (Holdings) Pty Ltd, [unreported, NSW Court of Appeal, 4 September 1987]) Furthermore it is not in issue that the learned Master was obliged in the present case to furnish reasons for his ultimate decision. What has been said is that the learned Master paid lip service to his obligation and, in effect, simply set out lengthy passages from the transcript of evidence of a number of witnesses in his reasons for judgment and concluded in favour of the defendant. This was, it was contended, tantamount to giving no reasons at all with the consequence that the ultimate decision was vitiated by legal error. The appellant's counsel sought to support this submission by reference to specific instances of asserted failure to consider the evidence of witnesses and to resolve issues which were fundamental to the final conclusion. It is obvious that the content and extent of the reasons in support of a decision will depend upon the nature and circumstances of the case under consideration. In this respect it should be said at the outset that the Master was concerned to resolve a straightforward issue as to which of the parties was on the incorrect side at the time of the collision, it being accepted that if the appellant's version was rejected then there should be a verdict for the defendant. There were no independent persons who witnessed the accident and in the ultimate the decision depended upon whether the learned Master accepted the appellant's or the respondent's version of the accident. 16 UNREPORTED JUDGMENTS This is a familiar issue which confronts the courts in this State on each and ever day of the court year. The task of determining which of two competing versions of an accident should be accepted is one which requires a careful consideration of the evidence of the parties in the light of any other evidentiary material which may support one or other party, such as the presence of debris on the roadway or the existence of an admission. However, it is a class of case in which in general no purpose would be served by requiring a trial judge to expound at great length upon the reasons why various aspects of the supporting evidence did or did not, as the case may be, assist him to determine which witness, or which version, should be accepted. In Soulemezis Mahoney JA observed: "Tn my opinion, the law does not require that a judge make an express finding in respect of every fact relating to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion." It is unnecessary to determine whether that principle should be applied universally. It is enough for me to say that, in my opinion, it is certainly true of cases of the type now under consideration. I turn then, with these observations in mind, to the learned Master's reasons. Having recited the competing contentions the Master proceeded to set out lengthy passages from the evidence of the examination in chief and cross-examination of the appellant. The passages quoted concern the facts of the accident and his denial that he gave the police officer, Constable Dell, a statement in the terms suggested by that officer. This latter issue was one of considerable moment during the course of the trial and involved a sustained attack by senior counsel for the appellant on the conduct and credibility of the police officer. This attack went so far as to suggest that the police officer had written the appellant's statement in his notebook before he had even spoken to the appellant. It was contended that this was explicable in the particular circumstances of this case in that the respondent was the girlfriend of another policeman known to Constable Dell. The learned Master then turned his attention to a witness Mrs Martens. She did not see the accident but happened upon the scene after it had occurred. The reasons for judgment recite: "Her evidence, did not assist the court to determine where on the roadway the collision took place. She spoke of debris on the road, but in cross-examination she was an unsatisfactory witness. I reject her evidence." This passage is cited by the appellant as an example of the lack of reasons. "Why was her evidence unsatisfactory?" the appellant's counsel asks. I am unable to accept that the Master was required to do any more in this instance than he did. While I do not suggest that it was absolutely necessary for him to say any more than that the witness was unsatisfactory he did go further. What he said made it plain that the unsatisfactory nature of her evidence was disclosed during the cross-examination. Even a cursory reading of that cross-examination reveals her unreliability as a witness. Furthermore, anyone who was present and heard the evidence given would, I have no doubt, have understood immediately why It was that the Master found her unsatisfactory, There was simply no occasion for him to go further and spell out the obvious in great detail. I will cite a small portion of her evidence to emphasise the point. In her evidence in chief she said that she saw debris on the road in the lane that the motor bike had been travelling on and didn't notice any debris elsewhere, In URJ WATERSON v BATTEN (Clarke JA) 17 cross-examination she repeated her statement that she had seen the debris, which she described as broken orange glass, in the motor cyclist's (that is the appellant's) lane and then gave the following evidence: "Q. Over what sort of an area was it spread? A. I can't really say. Q. Give us an idea? A. There were bits and pieces spread from one side of the road to the other I presume. Q. From one side of the road to the other, that is from one side of the bitumen road across to the other side of the bitumen, is that right? A. Yes. Q. This is pieces of this yellow glass that you thought it was? A. Yes." Having said that she saw debris in the motor cyclist's lane and hadn't noticed any elsewhere she then proceeded, in cross-examination, to contradict herself by saying that she had seen the glass from one side of the road to the other. There may have been an explanation for her apparent contradiction although Ihave been unable to observe it in the transcript of the evidence but whether there was or not there was certainly justification, which needed no explaining, for the learned Master to make the observation he did. Counsel then turned his attention to Mr and Mrs Dornan, persons known to the appellant, who lived in close proximity to the scene of the accident. Mr Dornan did not claim to have seen the accident but went to the scene shortly after it occurred. The learned Master briefly recited observations made by Dornan when he arrived at the scene and adverted to later inspections by Mr Dornan and his taking of photographs He concluded: "Mr Dornan's evidence taken in its entirety did not assist the court in determining where on the roadway the collision took place. This was a conclusion open to the Master and once he had reached it he had, in a sense, negated the importance of the witness' evidence. Furthermore, it would necessarily follow that his ultimate conclusion was not based in any way on the evidence of this witness. Counsel accepted that the reasons sufficiently exposed that fact and also conceded that there were features of the witness's evidence as to the positioning of the debris which supported the learned Master's conclusion. The point that was made, however, was that Dornan had given clear evidence that he saw no skid marks on the road. This evidence was in conflict with Constable Dell's evidence to the effect that the respondent's motor vehicle had left tyre marks, all of which were on her correct side. It was incumbent therefore, it was argued, for the learned Master to resolve this conflict and to express his resolution, and his reasons for it, in his reasons. I am, however, unable to accept that the obligation to furnish reasons for decision extends to the detail which acceptance of this argument would require. To require of a judicial officer that he resolve every issue of fact which occurred in a case in which the simple issue was whether the respondent was on the wrong side of the road at the time of the accident would, in my opinion, be to impose a burden on that officer which is both impractical and beyond the demands of justice. The evidence as to the existence of skidmarks, and the position of debris, on the roadway was neither clear nor unequivocal. There was so much conflict as to both as effectively to render it difficult to find powerful corroboration from these indicia for the version of either party. No doubt it was open to the Master to accept Constable Dell's evidence on these aspects, or the somewhat less clear evidence of Dornan, but insofar as there is no expression of the resolution of the conflict in the judgment I would infer that the learned Master placed no reliance on debris and marks on the road in coming to his ultimate conclusion. In the light of the conflict of evidence he was certainly 18 UNREPORTED JUDGMENTS entitled so to act. What is clear, and was said, is that Dornan's evidence did not assist. It was unnecessary, in my opinion, to go further and say why. The reasons then proceed: "Mr Dornan's wife, Laura Anne Dornan, heard the crash, she did not see the accident occur. I find her evidence did not assist the court." The first sentence was a literally accurate statement and counsel for the appellant accepted this. Mrs Dornan said that she did not see the accident and she did not furnish any evidentiary material which could have provided real assistance to the court in determining the truth of the matter. Notwithstanding counsel argued that there was a particular feature of Mrs Dornan's evidence which, in the context of the case, required careful consideration and that the omission of any expression of that consideration in the reasons demonstrated their inadequacy. The respondent, in her evidence, said that the appellant was, immediately before the accident, waving to a lady beside the road and this act led him to veer onto the wrong side of the road and into her car. In this manner she provided an explanation for the appellant's moving into the path of her vehicle. Mrs Dornan, for her part, said that she was putting her car into her garage which was three to four hundred feet from the roadway, when she heard the crash. In cross-examination she conceded that she might have been out of the car but denied that she was near the roadway. The respondent identified Mrs Dornan as the lady to whom the appellant was waving and accordingly there was a clear conflict of evidence. If Mrs Dornan's evidence as to where she was at the time of the crash was accepted then, clearly enough, the respondent's reliability was somewhat diminished. On the other hand even if Mrs Dornan's evidence was accepted it did not necessarily follow that the significant evidence given by the respondent that she was on her correct side of the road at the time of the accident should be rejected It would have been quite open to the learned Master to accept the substance of the respondent's evidence despite her apparent error on this aspect Likewise it would have been open to him to conclude that it was unnecessary to resolve this issue because of a clear preference for the evidence of one or other of the parties on the major issue. The complains then is not that the learned Master dealt inaccurately with the evidence of Mrs Dornan but that he didn't refer expressly to the conflict I have mentioned and articulate his conclusion with regard to it, In my opinion this was a peripheral matter which did not necessarily require express attention in the reasons for judgment and I am unable to accept the contention that the omission of reference to this conflict from the reasons demonstrates legal error. The reasons then proceed to deal with the evidence of Mr Webb in a manner which is not the subject of any challenge and then, after reciting the statements given by each of the parties to Constable Dell, proceed: "Now I accept the evidence of Constable Dell that that is what the plaintiff said to him. I do not accept that Constable Dell acted dishonestly in his investigation of this accident. To accept the plaintiff's case I would have to find improper conduct on Constable Dell's part. That I do not find." The appellant, in a later ground of appeal, asserts that legal error is demonstrated in this passage but does not, as I understand the argument, and subject to the suggested conflict with Mr. Dornan, suggest that it was necessary to deal any more fully with Constable Dell's evidence. The reasons then proceed: "T accept the truth as to how this accident occurred is contained in Miss Batten's statement to Constable Dell. In giving her evidence both in chief and in URJ WATERSON v BATTEN (Clarke JA) 19 cross-examination I found her to be a truthful witness. She was subjected to a severe cross-examination which in my view did not dent or impugn her credibility. Her evidence was. . In view of my findings it follows the plaintiff was the author of his own injuries. He was negligent. I find the defendant was not negligent." What appears from the passage I have quoted is that the learned Master concluded that the respondent was a truthful witness and had given an accurate statement of the occurrence of the accident when she spoke to Constable Dell. He also, inferentially, drew assistance from the fact that in the appellant's statement to Constable Dell, which in his opinion appeared accurately in the notebook, the appellant did not complain that the respondent's vehicle was on her incorrect side of the road but simply said: "It appeared to be very close to the centre line." In my opinion the reasons give sufficient expression to the ground basing the ultimate decision. That is the learned Master's preference for the evidence of the respondent supported as it was by the appellant's failure to suggest in his statement to the police officer that the respondent was on her wrong side of the road. The circumstances of this case did not call for any greater detailing of the reasoning process nor an expressed resolution of each of the issues or conflicts of fact which arose during the course of the case. Indeed I would infer from the lack of reference to the evidence of the witnesses concerning debris and the marks on the road that this evidence was so delicately balanced that the learned Master felt it provided him with no assistance in his ultimate determination. I reject this ground of appeal. Before leaving this matter I should make the observation that the finding that the respondent was truthful and had given an accurate account to Constable Dell was a critical one. Once the learned Master accepted the respondent as a truthful witness who had conveyed the truth in her statement to Constable Dell it necessarily followed that the appellant's vehicle was on its incorrect side at the time of the accident. What she said in the statement was: "I was driving veh.KJO-942 in a easterly direction along Wisemans Ferry Road at a speed of approx 60 kph. As I was approaching a right hand bend in the roadway a motor cycle coming in the opposite direction was 2' over the centre line in my lane. I braked & swerved my vehicle to the left. The motor cycle collided with the front drivers side of my vehicle and ran along the drivers side. My veh. then ended up on the gravel section of the road." I have not set out that portion of the evidence of the respondent quoted by the learned Master but it included this question and answer: "Q. Were you crying while you were with him (i.e. the appellant)? A. Yes. He saw that I was very upset and he said "Look you know it is all right, calm down, I am all right' and he said 'Don't you worry about anything, it is my fault, the accident'." The acceptance of this evidence appears clearly enough from the earlier statement by the Master that the respondent was a truthful witness and it provides further support for the ultimate conclusion. It should not be overlooked that the learned Master obviously relied on his observation of the respondent while she was giving her evidence in reaching a favourable conclusion as to her credibility and truthfulness, This is of importance for as Samuels JA pointed out in Chambers v Jobling, (1987) 7 NSWLR 1, at 20: "However that may be, the High Court, in cases which have followed Warren [Warren v Coombes, (1979) 142 CLR 531], has made it quite plain that the Court of Appeal is required to defer to the findings of the primary judge where these are 20 UNREPORTED JUDGMENTS based upon his assessment of the credibility of witnesses unless, as was said in Brunskill [Brunskill v Sovereign Marine & General Insurance Co Ltd, (1985) 59 ALJR 842; 62 ALR 53] such a conclusion is quite inconsistent with established facts, or was glaringly improbable, In such a case, it seems that the appellate court can intervene only if the primary judge's decision can be seen 'to be clearly wrong on grounds which do not depend merely on credibility.....'." In this case the appellant does not suggest the existence of any glaring improbability in the respondent's evidence or that it was inconsistent with established facts. Being forced, by the absence of any sound basis upon which to urge the court to conclude that the respondent's evidence be disregarded, to find other areas in which to attack the judgment the appellant directs attention to the expressed reasoning and its suggested inadequacy. For my part I can find no substance in the first claim, that is, that the Master failed to decide the matter at all. He decided it on very proper grounds. He accepted the evidence of one of the two eyewitnesses in preference to that of the other and was, it was conceded, entitled to do so. But the finding on the truthfulness of the respondent has a_ particular significance in regard to the claim that the Master had not exposed his reasoning process. This is because this finding, and the fact that the ultimate decision was based on it, denies the appellant the opportunity of arguing that the reasoning which led to the decision was not exposed, It was. As it is that reasoning which is critical and needs to find expression in the reasons for judgment the appellant's argument founds upon a slippery foundation, That is that the Master did not deal expressly with peripheral factual questions the answers to which may or may not have assisted in determining which of the two eyewitnesses should be accepted. It may be that a failure by a Judge or Master to deal expressly with peripheral issues may render a judgment vulnerable to attack, although the circumstances in which this could occur would, I apprehend, be quite exceptional. Accepting that possibility there is nothing in the reasons for judgment in the case which would, in my opinion, justify its setting aside. The appellant next contends that the learned Master erred in making it an essential precondition to a finding in his favour that Constable Dell was guilty of improper conduct. The alternative contention was that the learned Master erred in elevating the burden of proof facing the appellant by requiring him to establish that Constable Dell had acted improperly. The submissions in support of this ground of appeal fixed on the statement in the reasons which I have already set out which reads: "In accept the plaintiff's case I would have had to find improper conduct on Constable Dell's part." There is force in the appellant's submission if, and only if, that statement, when properly construed, meant that unless the appellant could establish impropriety on the part of Constable Dell he must necessarily fail in the action. I do not however read it in that way having regard in particular to the context of the learned Master's observation. I have already indicated that the appellant denied furnishing the statement which appeared in the Constable's notebook and contended, through his counsel, that the Constable asked him to sign a statement which he had written in the book prior to any discussion with the appellant This contention charged Constable Dell with very serious misconduct. Notwithstanding, the appellant conceded that the URJ WATERSON v BATTEN (Clarke JA) 21 statement in the notebook was correct in all but one particular. It was not correct, he asserted, in its recording his statement that: "Tt (the respondent's vehicle) appeared to be very close to the centre line." He said he told Constable Dell that the vehicle was two feet over the centre line. No doubt the appellant's counsel could have proceeded upon the basis that Constable Dell misapprehended what he had been told or that there had been some misunderstanding between them. He did not do that but embarked upon a deliberate attack on the Constable's honesty and charged him with bias in favour of the respondent In this context, and bearing in mind that the learned Master ejected this attack, it is not surprising to find the observation which has been challenged. To my mind it conveys no more than that an acceptance of the appellant's evidence on this crucial part of the case would have required a rejection of the evidence of Constable Dell and, in the circumstances of the particular challenge mounted to his evidence, this would necessarily have meant that the Constable had acted in an improper manner. The resolution of the case depended almost entirely upon an assessment of the reliability and credibility of the appellant and the respondent. They alone saw what occurred. The particular conflict between the appellant and Constable Dell was undoubtedly a critical factor in determining the reliability of the appellant as a witness. In this context it Is, I think, true to say that if the appellant had been accepted as a witness of truth it would almost certainly have followed that Constable Dell had acted in an improper manner in asking him to sign a statement which had been written in the notebook by Constable Dell before the interview commenced. I would add that I do not accept that one can infer from the statement under attack that the learned Master imposed a high burden of proof upon the appellant Indeed even a superficial reading of the judgment would show that this is not a case in which the onus played any part. Not only did the appellant fail to satisfy the Master, on the balance of probabilities, that the respondent had been negligent but she, for her part, satisfied him that it was the appellant who had been negligent. It follows that I reject this ground of appeal also. The third ground raises in effect another instance of an asserted failure to give reasons. The appellant charges that the Master failed to give consideration to the extent to which the respondent's statement, as recorded in Constable Dell's notebook, was in conflict with her evidence in chief. This was said to be erroneous particularly insofar as the Master accepted both as correct. What occurred, however, was not an unfamiliar happening in this area of litigation. The statement appearing in the police notebook was a concise statement which could be said to be lacking in detail. The critical words were "as I was approaching a right hand bend in the roadway a motorcycle coming in the opposite direction was two feet over the centre line in my lane." In her evidence the respondent amplified the statement. She said that that appellant was not watching the road but was waving to a lady and then veered across the double yellow lines. Given the conciseness and lack of detail in the statement to the police I do not read the two pieces of evidence as being in conflict. Rather I read the oral evidence as recounting the respondent's recollection of the circumstances of the collision and the statement as emphasising only the critical factor, that is, that the appellant was on his wrong side of the road. I am not persuaded that it has been demonstrated that the Master erred in this respect, 22 UNREPORTED JUDGMENTS Grounds 4 and 5 concerned the evidence of Mr. and Mrs Dornan and in particular those features of their evidence with which I have already dealt in my consideration of the first ground of appeal. For the reasons which there appear I do not find either of these grounds made out. In the ultimate the appellant has failed to make good any of the grounds relied upon by him and accordingly, in my opinion, the appeal should be dismissed with costs.