ROBERTS v LALOGIANNIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MEAGHER JJA and Hope AJA 1 December 1989 [1989] NSWCA 178 COMMON LAW — PERSONAL INJURY — REVIEW OF FINDING OF FACT Meagher JA This is an appeal of an action which was before Judge Lloyd-Jones, a judgment of 30 March 1988. The action involved a motor vehicle collision between the plaintiff's semi-trailer which was travelling on the Hume Highway in a northerly direction, and the defendant's vehicle, which was travelling on the Hume Highway in a southerly direction. Although one would have thought in those circumstances it would have been clear to work out how the accident occurred, the evidence was in such a state it was extremely difficult to understand exactly what happened, neither party being able to given any evidence even as to where the point of impact was. It is not made any clearer by the fact that each party had an expert who gave different versions of the accident and, by his Honour's judgment, which contain at least one error when his Honour said that Mr Penny, the defendant's expert, looked at the scene of the accident on the day it occurred when in fact he did not obviously get to see it until four or five days later. Nor is it made clearer by the internal inconsistencies in the judgment. For example, on one page it is said the damage to the defendant's vehicle was at the front on the right driver's side and on the very next page says that the collision was at the rear of the Fairlane. Nor is it made any easier by the fact that the defendant in the original case, who is the present respondent, gave evidence as to a head-on collision where the photographic evidence of her motor vehicle seems to be entirely inconsistent with that. Nonetheless the rival versions are: as far as the plaintiff is concerned, that the vehicle he was driving was on its correct side of the road when he saw the driver of the vehicle in front of him. He saw the defendant's vehicle behaving in a bizarre manner, moving from the correct side of the road to the incorrect side of the road. He braked heavily in order to avoid the vehicle. Unfortunately, he did not do so and then in getting out of control he veered on his incorrect side of the car and back again to his correct side. The defendant's version was that she was also on her correct side of the road going south, that she saw the headlights of the plaintiff's vehicle to the left on gravel at which point her car got out of control and moved over to the incorrect side of her road. A police officer who was there at the time certainly supports the plaintiff's version of the evidence. He gave evidence, as he observed, of heavy skid marks commencing at a point where the truck was clearly on its correct side of the road. The plaintiff would only have made those heavy skid marks if he had applied his brakes when he first saw the defendant's vehicle and this evidence certainly would indicate that he did this when he was still on his correct side of the road. 2 UNREPORTED JUDGMENTS Unfortunately, that evidence does not entirely tally with the evidence of the defendant's witness, who is perhaps more skilled. Moreover, it was made very hurriedly when the policeman in question had other matters on his mind. He took no complete contemporary notes. The night was very dark and his observations were made with the aid of a torch. I may add to that that he ultimately showed some animosity towards the defendant and it is impossible to determine what effect that animosity had on his evidence. Mr Penney, on the other hand, noticed skid marks apparently commencing on the plaintiff's wrong side of the road, which would be consistent with the defendant's story. Ultimately faced with the task of sorting out these problems, his Honour preferred the evidence of the defendant personally and of her witness, Mr Penney, and discarded or discounted the evidence of the policeman and of the plaintiff's driver. We have had the benefit of some very powerful submissions by Mr Branson, of Queens Counsel, for the plaintiff appellant, which would indicate that there are a number of reasons and a number of circumstances which would tend to weigh the balance of probabilities in favour of the plaintiff's version: and although he said, and said extremely well, everything that could possibly be said on behalf of the appellant, the unfortunate fact is his Honour, the trial judge, had to choose between conflicting evidence and he did make his choice. It is not perhaps a choice I would have made, but he did make it and he found for the defendant's version. Although his Honour did not expressly base his findings on the question of the credibility of the witnesses, he must impliedly have done so, and notwithstanding the obvious error he made about the time which Mr Penney made his observations, about which point Mr Branson is perfectly correct, I do not think the circumstances are such that an appellate Court could overrule his Honour's finding. For those reasons I am of the view that the appeal must be dismissed with costs. Samuels JA I would not think his Honour's judgment is reviewable in this Court. It would depend upon his Honour's view of the credibility of the witnesses, although he does not say so. Once he rejected the constable's evidence about the skid marks, it seems to me that was a fatal blow to the appellant's case. We have no authority to interfere with findings of this kind and I agree that the appeal must be dismissed. Hope AJA I agree. The appeal is, therefore, dismissed with costs. Counsel for Appellant: CC Branson QC with JL McInerney Solicitors for Appellant: McMahons Counsel for Respondent: P Roberts Solicitors for Respondent: Tietyens