TRIMEN v JANES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and MCHuGH JJA 17 February 1988 [1988] NSWCA 161 APPEAL — credibility — acceptance of witness — difficulty in setting aside verdict — Iskanderian vy Iskanderian Bros Pty Ltd (Court of Appeal) (24.2.87) applied ORDER Appeal dismissed with costs. McHugh JA This is an appeal by an unsuccessful plaintiff in a District Court action against a verdict for the defendant in an action for damages for personal injuries. The action was heard by Gallen DCJ without a jury. His Honour held that there was no negligence by the defendant in the control of a boat known as Battle Star which the plaintiff alleged had struck a reef known as Sow and Pigs while she was a passenger on it. The incident which gave rise to the action occurred in the early afternoon of 25 March 1981. Battle Star was engaged in a race on Sydney Harbour on that afternoon. After leaving the Middle Harbour Yacht Club, the boat had gone in a general northeasterly direction to a marker near Inner South Head and then turned south and headed in a general southwesterly direction towards Chowder Bay. It is common ground that shortly thereafter the boat' collided with some object at a point on, as the plaintiff alleges, or in the vicinity of, as the defendant alleges, Sow and Pigs Reef. The plaintiff's case was that the boat probably hit a large boulder which was part of the extended reef and which, at that time of the day, would have been covered by about six foot six inches of water. On the southeastern corner of the reef is a beacon which stands eight metres high. Opposite, some distance away, is a beacon on what is called the Western Channel of the harbour. Much of the evidence in the case was common ground, although there was a conflict concerning the crucial facts of the case. It was common ground that Sow & Pigs Reef consists of several small passages of rock extending in a northwesterly direction from the beacon for 108 or 109 metres. At low tide it is covered at varying depths of between 1.2 and 2.7 metres. About eighty-nine metres northwest of the Sow and Pigs Reef beacon is a large boulder covered by water which is alleged to have been covered by water on 25 March 1981. It was common ground that the safe distance of passage on the western side of the reef is a point 150 metres from the northwesterly edge of the beacon. It was also common ground that a direct course from the marker near the Inner South Head to Chowder Bay where there was also a marker, takes the boat a little to the west of Sow and Pigs. The boat suffered minor damage. The total cost of repair was no more than a couple of hundred dollars. The conflict between the plaintiff's case and the defendant's case turns largely on the place where the Battle Star was when it collided with an object. The plaintiff's case was - and indeed had to be - that it was somewhere inside the 109 2 UNREPORTED JUDGMENTS metres northwest of the beacon on the Sow and Pigs Reef. The defendant's case was that it was somewhere between 125 and 150 metres to the northwest of the beacon, depending upon which evidence was accepted. The plaintiff called in evidence a Mr Andrew McLennan who was a deckhand working between the bow section and the mast. His Honour found that he was a truthful witness but his evidence was unreliable in some respects. Mr McLennan said that the Battle Star went north of the beacon on Sow and Pigs Reef to get to Chowder Bay. He said the boat was travelling at about seven to eight knots. He said that it stopped, rode up and continued again. It hit an object which he said he thought was a rock at Sow and Pigs Reef. He said that it was a definite stop and that it was severe. He said he saw nothing. In other evidence he said that there was just a bump up and down and then boat got going again. He estimated that the place where the bump or stop took place was about 100 yards, more or less, northwest of the beacon on the reef. In cross-examination he conceded that it could have been up to 150 yards. In his evidence he placed an "X" on an exhibit as to where the jolt took place. It is outside the reef area and it seems to be common ground that that "X" would place the boat in deep water. The only other relevant evidence called on behalf of the plaintiff on liability was her own evidence. She said that she was thrown backwards, that there was an almighty thud, and that the boat had obviously hit something. The defendant gave evidence. It is a remarkable feature of the case that the trial judge made no comment on whether or not he accepted the defendant's evidence. Indeed there is some ground for thinking that the learned trial judge placed the defendant's evidence to one side and relied on another witness whose evidence I will refer to in a moment. The defendant conceded that the Battle Star hit something. But he asserted that whatever it hit was 125 to 150 metres from the sow and Pigs and slightly north. Later in his evidence he said that he was about eleven boat-lengths away from the beacon, and since the Battle Star was forty-six feet long, this would seem to place the boat about 165 yards to the northwest of the beacon on the reef. He said that he was following another boat called Sagacious which was about ten metres on the inside of him, closer to the reef, and that he was overtaking it. The defendant said that the Battle Star did not stop when it hit an object. He said that there was just a glancing blow and a bang and that the boat kept on going. He said he did not think that he hit "the Pigs", although he gave some evidence in cross-examination which, on one reading of it, is susceptible to an interpretation that he conceded that he had hit "the Pigs". The learned trial judge took the view that the defendant made no such concession. I think that when his evidence is read as a whole there was no such admission by him. The defendant admitted that you aimed to be as close as you could in going past the Sow and Pigs Reef without bringing yourself in the danger area. He denied that he simply relied on Sagacious being in a safe place. He said in substance that he relied on his position between the two markers, by which I understood him to mean the marker on the southeastern corner on the reef, and the marker on the western channel. He also conceded that he was surprised that Sagacious had not hit the reef. He maintained in evidence that he was too far out to have hit the reef and he denied that at any stage he had said that he had hit the reef. URJ TRIMEN v JANES (McHugh JA) 3 However, the witness whose evidence, in the result, was crucial was that of a Mr Reginald Forster who was working on the boat. He gave evidence that the boat was travelling in a southeasterly direction, which was obviously incorrect, and which the learned trial judge held was incorrect. He said that the boat hit a submerged object. His evidence amounted to a denial that it had hit the reef. He denied that the boat was 100 yards northwest of the beacon on the Sow and Pigs Reef. He was adamant that it was in deep water and that the boat was 150 metres northwest of that beacon on the reef. He said the boat decelerated; it did not stop. Its speed dropped from six to seven knots to two knots. The learned trial judge found, as I have said, that Mr McLennan's evidence was truthful but unreliable in some respects. However, his Honour was satisfied as to the reliability of the evidence of Mr Forster, although he thought one aspect of his evidence was incorrect. His Honour said: "Tt appears to me that the evidence given by Mr Forster, although substantially correct, was incorrect in one respect: he said that, 'After rounding the east channel marker we were heading towards Taylor's Bay travelling in a southeasterly direction.' I am satisfied that the 'Battle Star' did not take this course and I am satisfied that Mr Forster was mistaken when he gave this evidence." Later his Honour said: "T accept the remainder of Mr Foster's evidence including the evidence he gave as to the effect of the collision with the submerged object on the yacht 'Battle Star' ie that its speed was decelerated from 6-7 knots to approximately 2 knots." Once the trial judge accepted the evidence of Mr Forster the task of the plaintiff/appellant in this appeal becomes extremely difficult. Mr Forster's evidence, was, as I have said, that at the time of the collision with the object the boat was 150 metres to the northwest of the beacon, that it was in deep water, that it hit a submerged object and that it decelerated but did not stop. If that evidence is accepted, as Mr Caldwell, who appeared for the appellant, conceded, the plaintiff's case must fail. The burden of Mr Caldwell's submissions was that on the whole of the evidence his Honour could not rationally accept the evidence of Mr Forster. This Court had occasion in a judgment last year in Iskanderian v Iskanderian Bros Pty Ltd (Court of Appeal, unreported, 24.2.87) to review the recent authorities on findings of fact which are the product, wholly or partly, of the judge's assessment of the credibility of a witness or witnesses. I said: "When it appears, expressly or by inference, that a trial judge's finding of fact has been influenced by his view of the credibility of a witness or witnesses, the power of an appellate court to interfere with the finding is necessarily circumscribed. The reactions of witnesses, their hesitations and evasions, their personalities and intelligence, and their general demeanour are not before the appellate court. Under the common law tradition, these matters are as much a part of the evidence as the oral testimony and printed exhibits." I went on to say that: "Tf it can be demonstrated that the trial judge has failed to use or has misused his advantage, an appellate court is entitled to interfere with his finding of fact, but it cannot do so merely because of its own opinion concerning the probabilities of a case or the weight to be given to the evidence of various witnesses." Later I said that: 4 UNREPORTED JUDGMENTS "A finding of fact, depending in whole or in part on the credibility of a witness or witnesses cannot be set aside merely because the probabilities strongly point to the opposite conclusion. However, if it appears from admitted or incontrovertible facts that the finding is not reasonably consistent with those facts, then an appellate court is entitled to interfere." If I were to assess this case simply on the cold print of the transcript, I would think that there is much to be said for the proposition that the boat, the Battle Star, did hit the reef rather than some submerged object. The Court has not called on counsel for the respondent to justify the finding of his Honour but, prima facie, the case in favour of a finding that the boat did hit the reef seems to me to be reasonably persuasive. But once his Honour accepted the evidence of Mr Forster the facts of the case wear a very different complexion. Once the evidence of Mr Forster that the point of collision was 150 metres to the northwest was accepted, the case for the appellant is much weaker. I appreciate, of course, that the learned trial judge, before he accepted the evidence of the witness, was required to look at all the probabilities in the case. But when a judge has done that and bases his ultimate findings on his acceptance of a particular witness or witnesses, the burden on an appellant seeking to upset the verdict is very heavy. In this appeal Mr Caldwell has relied on a number of what he argued were admitted or incontrovertible facts as the basis for undermining the trial judge's acceptance of Mr Forster's evidence. The first matter upon which Mr Caldwell relied was that in his judgment his Honour said that he was satisfied that if the defendant had sailed the course which he said he had taken he would have been safe. It was pointed out by Mr Caldwell that the defendant said that he went as close to the reef as he possibly could and that the defendant conceded that Sagacious had gone over the reef and was only ten yards away from Battle Star. However, as I have already pointed out, his Honour made no comment about the acceptance of the defendant's evidence. The impression one has is that the defendant's evidence may have been put to one side. Secondly, at no stage did the defendant concede explicitly that he went closer than 125 metres to the reef beacon. That was still sixteen metres outside the northwestern extremity of the reef. Certainly there was nothing in the evidence of the defendant concerning the course which he took which provides any ground for suggesting that the learned trial judge's finding in relation to Mr Forster was unreliable. Next Mr Caldwell relied on what he said was his Honour's failure to appreciate a disparity in the evidence of Mr Forster and the defendant concerning the course which they had taken. Both of them said that after passing South Head marker they had turned slightly north of west. It was said that this would have taken them on quite a different course from the southwestern course which they admittedly were on at the time of the collision. However, I do not myself see the significance of this matter. It is quite possible that they did turn slightly north of west after coming round the South Head marker so as to ensure that they would be clear of the reef as they sailed down to Chowder Bay. The next point which Mr Caldwell relied upon was that there was no evidence of any other object which the boat could have hit. In submissions three possible objects were mentioned: one was a sunken container; the second was a floating but submerged object; the third was an uncharted or unheard of rock lying to the northwest of the Sow and Pigs Reef. There was not a scintilla of evidence which would support any of these matters. URJ TRIMEN v JANES (McHugh JA) 5 It is a very powerful point that, on the face of the evidence, the highly probable cause of the collision was the reef. But it is not simply a matter of drawing a conclusion between the competing inferences of hitting the reef and hitting an unidentified object. Once Mr Forster's evidence is accepted that the collision took place 150 metres northwest of the beacon, then obviously the collision could not have been with the reef. Strong as the arguments are in favour of the reef being the object with which Battle Star collided, it is not such an admitted or incontrovertible fact that this Court can say that the trial judge could not rationally accept the evidence of Mr Forster. In addition Captain Ward, who was called for the plaintiff said in his evidence, when asked about whether or not the description of the collision was consistent with the boat hitting a reef or something else, said: "T mean if there was something peculiar under the water that couldn't be seen; who knows." The next point on which Mr Caldwell relied was that his Honour did not consider the effect of the evidence concerning the collision. Certainly there was much evidence which was consistent with the collision having been with the reef. But in my opinion the evidence falls far short of providing any satisfactory ground for holding that his Honour was wrong in accepting the evidence of Mr Forster. It was pointed out by Mr Caldwell that after his Honour made a finding concerning the damage to the boat, Battle Star, he said that he was satisfied from the evidence of Captain Ward that had the Battle Star hit the reef at six to seven knots major damage would have been done to the yacht and that it would not have continued after such a collision but would probably have remained aground on the reef. Captain Ward's evidence does not directly support this statement. But there are passages in his evidence which indicate that a collision with the reef may well have been a violent one, depending upon which part of the boat struck it. I am far from satisfied that his Honour's statement about what damage he would have expected from a collision with the reef is such that it destroys his acceptance of Mr Forster as a witness. Indeed the acceptance of Mr Forster's evidence by his Honour seems to me to stand quite independently of any views his Honour formed about what might have happened if the boat had collided with the reef. Mr Caldwell also pointed out that his Honour ought to have paid more attention to the difficulty in judging distance over water. He pointed out that Mr Forster, who said that the boat was 150 metres to the northwest of the beacon point, had not even been close to the beacon and that his evidence was an estimate only. However the learned trial judge saw Mr Forster. He had the advantage which is denied to this Court of making some assessment of his intelligence and general powers of observation. Although the matters to which Mr Caldwell has drawn our attention were reasons for treating Mr Forster's evidence with caution, nevertheless, once his Honour had accepted that evidence, arguments about difficulties in estimating distance do not authorise this Court to interfere with his Honour's finding of fact. The matters to which I have referred are, I think, the principal grounds upon which counsel for the plaintiff/appellant relied. None of them, either alone or in combination, provides any ground for interfering with the learned trial judge's acceptance of a witness who he had the advantage of seeing. Accordingly in my opinion the appeal must fail and the only order which the Court can make is that the appeal be dismissed with costs. 6 UNREPORTED JUDGMENTS Samuels JA I am of the same view and there is nothing I wish to add to what has already been said. Mahoney JA I also agree with the judgment of his Honour McHugh JA. 5 Samuels JA The order of the Court therefore is that the appeal is dismissed with costs.