HYDEREPAIR PTY LTD v CAMERON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONY, PRIESTLEY and MEAGHER JJA 16 June 1989, 16 June 1989 [1989] NSWCA 103 Appeal from Common Law Division — Motor vehicle collided with car in front — Plaintiff claimed that brakes defective and defective state of brakes was due to employer's failure to exercise proper care in maintenance of vehicle — conflicting evidence as to condition of brakes and whether that condition caused the collision — Plaintiff believed as to how accident happened — Plaintiff and plaintiff's witnesses believed as to how defects caused collision — No issue of principle. Priestley JA In this appeal Hyderepair Pty Ltd, the defendant at first instance and the appellant in this Court, argues that Wood J was wrong in finding it liable to Mr Cameron, the plaintiff before him, for damage which he suffered in a motor vehicle accident while in the company's employ. The accident happened on 10 April 1984. Mr Cameron was driving one of the appellant's vans when, coming down a hill towards traffic lights and attempting to stop, the van's brakes, on his account of the matter, did not work and the van ran into the back of the car in front. Mr Cameron claimed the appellant had been in breach of its duty to him by negligently failing to provide him with a safe vehicle and that he suffered damage as a result. Wood J found in the plaintiff's favour on liability and assessed his damages at $447 644. After deducting the worker's compensation payment he had received, the Judge entered judgment for $386 433. The appellant asserts it was not guilty of negligence, but if wrong about that does not appeal against the amount awarded. For Mr Cameron a cross-appeal was filed on the ground the damages were inadequate but that cross-appeal has not been pursued. The issue before this Court therefore has been confined to whether Wood J should have found the appellant was liable in negligence to the respondent for the damages he suffered in the accident. It is simplest to deal with the appellant's argument by first stating the cases which were respectively put for the plaintiff and the defendant at the trial. Stated broadly, the plaintiff's case was that he had been complaining to his superiors in the company that the brakes were in a defective condition for some time; that he and a friend of his, who was a motor mechanic, had inspected the brakes two days before the accident and noticed defects in the brake drums and brake linings; that he had complained again to his superiors in the appellant company on the morning of 10 April 1984; that he had driven the van about the city and suburbs on jobs for the appellant during the day; that when coming down the hill towards the traffic lights at which the accident happened the brakes did not work properly; and that a police officer who was concerned with moving the van from the highway after the accident had noticed that the brakes were locked on the van; and also that he had mentioned to this police officer that the brakes had been playing up that day before the accident. 2 UNREPORTED JUDGMENTS The appellant's case was that the plaintiff had not complained to his superiors in the company concerning the state of the van's brakes before the accident; that the brakes were in order and, more particularly, that testing of the brakes after the accident showed that there was nothing amiss with them. Therefore, the appellant was contending at the trial, the accident can only have resulted from the plaintiff himself in some way bringing it about, that way not being connected with any defective state of the vehicle. Still speaking generally, the case was decided by the Judge's finding that the plaintiff's evidence was in general to be accepted; that complaints had been made and that the vehicle had been in a defective condition which caused the accident. He did not accept the evidence of some of the defendant's witnesses when in conflict with that of the plaintiff. On this basis it would seem that it was right for the plaintiff to succeed. Mr Coombs QC, however, as counsel for the appellant, mounted a vigorous attack upon the judgment. He took his starting point from two statements in the plaintiff's evidence. The first occurred in the plaintiff's examination in chief: "Q. Stopping at what? A. Down the bottom at traffic lights. I knew that I had to slow down to stop, so I put my foot on the brake and it went straight to the floor and I was pumping them up trying to get them to work and once I found I couldn't do that any more, I pulled the hand brake out. I nearly ripped it clean out of his hinges. Then I tried to - " The second was an answer in cross-examination of the plaintiff when, being asked about the actual mechanical cause of the brake failure the plaintiff was relying on, the plaintiff answered that the cross-examiner was talking about the drums and the shoes (this being a reference to what the plaintiff and his friend Mr McPherson had been inspecting a couple of days before the accident), whereas, said the plaintiff: "The problem I had was in the master cylinder. The master cylinder, the hydraulics, it is not part of my job to rip half the van apart and fix it all up'. The argument then pointed out that the plaintiff's expert witness, Mr Drake, gave evidence which showed that neither the plaintiff's description in the first part of the evidence I have just referred to, in which he said that the brake pedal went straight to the floor, nor his opinion, which appears from the second part of the evidence referred to, that the master cylinder was the problem, could be right. Counsel then drew attention to a paragraph in his Honour's reasons which he said was critical to the decision on liability and criticizable on two basic grounds. In this passage his Honour said: "T am not prepared to find that either the plaintiff was mistaken in his description and initial impression of sudden or total hydraulic failure. Rather, it seems to me that his observations were consistent with brake fade and a sloppy brake pedal due to overheating of the drums, linings and brake fluid, which necessitated pumping at the brakes and led to ineffective stopping when it became necessary to slow down a vehicle which was heavily laden and travelling downhill." The first ground of criticism of this part of his Honour's reasons was that it found in the plaintiffs favour on a case he had not made and which the appellant had not been able to meet. The second ground was that what his Honour said was not supportable by the evidence. The appellant's argument also asserted that the plaintiff should not have been believed on a number of points on which the Judge accepted him. URJ HYDEREPAIR PTY LTD v CAMERON (Priestley JA) 3 This aspect of the argument did not seem to me to be sustainable in view of well-known authorities (of which Coghlan v Cumberland is the original one) which deal with the way in which Courts of Appeal should take account of findings of credibility in trial courts. If the appellant were to succeed on the main argument which I have outlined, it might possibly be a consequence of success in that argument that the appellant's credibility argument could then succeed but not, in my opinion, otherwise. There were further arguments put for the appellant but as they also seem to me to be ancillary to the main argument I will leave mentioning them until after dealing with it. To evaluate the first point of the appellant's attack - the technical unlikelihood of the brake pedal going right to the floor - it is necessary to bear in mind that the plaintiff said slightly different things at different times. The very first thing that he said after the accident was recorded in the attending policeman's notebook: "Everyone stopped dead. I put my foot on the brakes but nothing happened." I should continue this quotation for another purpose at this point: "Q. Had the brakes been faulty before? A. No. The clutch had been playing up this morning. 'Then I have a note, "Vehicle's brakes locked on after accident"'." Again slightly out of sequence, but because it is at this point in the transcript that it appears, I should mention that in his evidence the policeman, now Det Suffield, recounted a conversation with the plaintiff almost immediately after the accident, in which he said: "T said to Mr Cameron, 'Are your brakes okay?' and he said, "They have been playing up today'." This question and answer took place, it seems from the evidence given by Det Suffield, possibly an hour or two hours before he made a note in his notebook of the plaintiff's statement, part of which I have earlier quoted. When asked in chief what had happened, the plaintiff said: "T knew that I had to slow down to stop so I put my foot on the brake and it went straight to the floor and I was pumping them up, trying to get them to work." I should say that that part which I have just excerpted is part of the quotation that I earlier referred to but did not read out. Then in cross-examination counsel, who for his own purposes (and quite properly sofar as his own purposes were concerned) was anxious to emphasise this aspect of the plaintiff's evidence, asked him: "Q. What you say happened is the pedal went straight to the floor? A. Yes. Q. No pressure? A. That is right. Q. Some failure in the hydraulics? A. That is right." Then counsel again put to him a little later: "Brakes going straight to the floor?", to which he answered, "Yes" and finally: "Q.... You saw the car stopped in front? A. Yes. Q. Then you found that the pedal went straight to the floor? A. Yes, and stayed there. Q. You tried to change gears and you tried to activate the hand brake? A. I pumped the brakes twice. I had the hand brake on and then I started going with the gears - the next best thing to slow me down, like anybody would. Q. The brake pedal went straight to the floor and your diagnosis of the problem was hydraulic failure? A. I cannot say really what caused it because the weight that was in that van - with hydraulics, number 1, they take heat, right - (objected to) 4 UNREPORTED JUDGMENTS Q. Please, did you not tell me before, less than half an hour ago, that the brakes failed because there was no hydraulic pressure? A. I don't know if there is no hydraulic pressure or not. Q. Well the pedal went straight to the floor? A. Yes. Q. And you got no pedal pressure at all, did you? A. No. Q. As you know, as an experienced mechanic, albeit unqualified, that happens when there is no hydraulic pressure because of some failure in the line or master cylinder or in the valve? A. It is caused by overheating - it's brake fluid not oil - it can be caused from overheating and you can get bubbles through the system and they will make the brakes not work. Q. Make them not work at all even if you pump them? A. I beg your pardon? Q. Make them not work at all even if you pump them, a bubble in the seal? A. It could have blew a rear wheel seal or front wheel seal. Q. And that would explain the possible lack of hydraulic pressure, would it not? A. It is possible. Q. If that happened it would be quite impossible for there to be pressure in the pedal five minutes later? A. No, it is not, if you pump it up. I only put two pumps and that is half a milk bottle of oil. You would have to pump at least eight times to clear the system out of oil." It is also necessary to look at the evidence of Mr Drake in evaluating this main submission put on behalf of the appellant. "Q. Assuming the brakes were in that condition on the Saturday before we have referred to, you said they would be less efficient. Could that mean that when you depressed the pedal, that it met not as much resistance? A. The condition there, if it did not meet the resistance - if brake failure was to occur you still usually have some pedal pressure but you don't have the stopping ability. The extension of that is brake drum expansion, heating could cause the drum to expand and then you have to pump the pedal to produce more fluid from the reservoir to expand the brake shoes out. Q. Could that give you the impression that you are not getting the resistance when you depress the pedal that you would expect? A. Yes, if you get a spongy or soaky pedal, if the fluid at this stage started to boil, it would be aerated and also extended brake pedal travel. Q. If you go to the floor, you would need something more; the loss of the hydraulic fluid or the overheating, is that correct? A. Yes, that's correct, your Honour. Q. Given the equipment that has been mentioned as being in the back of the truck prior to the accident and that it was going down a steep hill, although I am not suggesting it is a very steep hill, what effect would that have on the operation of the brakes, if they were in the condition that I have described, on the previous Saturday? A. Well, the stopping distance would be extended; there would be a greater generation of heat." When all that evidence is looked at and one comes back to reading the paragraph in his Honour's reasons which I have earlier set out, and in particular the sentence in the paragraph commencing, "Rather, it seems to me", it is my view that in that sentence Wood J was expressing the opinion based on the expert evidence given by Mr Drake that what had actually happened at the time of the brakes not working properly was that there had been brake fade, a sloppy brake pedal due to overheating of the drums, linings and brake fluid, that that had necessitated pumping on the brakes and had led to ineffective stopping, immediately causing the accident. URJ HYDEREPAIR PTY LTD v CAMERON (Priestley JA) 5 The sentence preceding that one, I must say, is a little hard to follow. It does not seem to me to have been fully transcribed, or perhaps not accurately transcribed. But whatever it was precisely intended to convey does not in any way cut down what is said in the following sentence. Coming to Mr Coombs' criticism that the following sentence cannot be justified on the evidence, it seems to me that it can. The evidence of Mr McPherson and of the plaintiff himself concerning the state of the brake linings and brake drums two days before the accident, taken together with what Mr Drake said about that, taken together with one view of what the plaintiff said in evidence - this being a view, it seems to me, not only proper on the evidence but probably required once the decision is taken to regard the plaintiff as a credible witness; namely that he had twice attempted to pump the brakes with no result - together with the account of the travels of the van, its load, the distances it had travelled, taken together with its past history and the accident itself, all seem to me to lead to the conclusion to which Wood J came. The evidence of Mr Drake simply looked at alone could be said to be a statement of theory, but when the parts of his evidence which I have referred to are looked at and when it is noted that the Judge himself seemed to be taking a considerable interest in the particular questions which I have referred to, it can be seen readily enough, I think, that those questions and answers to and from Mr Drake were related in the Judge's mind to the other items of evidence which I have just mentioned. The Judge had the opportunity of considering Mr Cameron's credibility, accepting the version given by Mr Cameron leading up to the accident and the evidence concerning the brake drums and the brake linings. The explanation given by the Judge then seems to be the most plausible one for what happened on the day. The other aspect which was put in criticising the paragraph of the Judge's reasons which I have been speaking about was that it was not open to the court to take that view since that was not what the plaintiff himself was putting as his case. Implicit in what I have said is that, in my view, the conclusion the Judge came to was in a real sense one aspect of the way the case was put for the plaintiff at the trial. It does not seem to me that it was something the Judge was not entitled to consider or, in light of the way in which Mr Drake's evidence came out, that there was any unfairness involved in the court taking the view that it did. One aspect of the case which is somewhat puzzling on any view of the case is the evidence given on behalf of the defendant showing that from some point shortly after the accident the brakes in the van functioned with normal efficiency. I say this is puzzling because it is hard to believe that the van spoken of from a day or so after the accident is the same one that was involved in the accident, so different are the descriptions of the efficiency of its braking system. What was involved in Mr Coombs' argument was really, it seems to me, that the plaintiff's case had to be wrong because the defendant's case of what the van was like from a day or so after the accident was so completely inconsistent with the plaintiff's case that the only possible result was disbelief of the plaintiff's case. While I can understand the vigour with which this argument was put by Mr Coombs, there seemed to me to be two reasons why the court should not accept it, looking at the matter overall. One is that it seems to me, first, the Judge was entitled to accept the truthfulness in essential and general matters of what the plaintiff said. Once he took that step and accepted also what Mr McPherson said 6 UNREPORTED JUDGMENTS and took into account the state of the vehicle as described by Det Suffield, I can see no reason why he should not have come to the conclusion that he did. If this has consequences for acceptability of aspects of the defendant's case then that follows. But the other matter is that this vehicle's history was completely accounted for as from some point of time on 11 April 1984. There is no evidence of what happened to it from about 6 pm on 10 April until whenever it was on the following day that it turned up at the repair shop. This interval may possibly explain the strange difference between the two accounts of the vehicle before and after. Whether or not it does provide the explanation, there is the gap between the accident and the later apparent appropriate functioning of the vehicle's brakes. The result is, as it seems to me, that on the main argument there was material upon which the trial Judge could come to the conclusion which he did. In my opinion, he was right in saying, as he did just before the paragraph which is attacked: "Although the matter is not free from difficulty, I believe that the plaintiff has shown on a balance of probabilities that his van was suffering brake problems which were beyond his capacity to repair and in respect of which he had unsuccessfully requested assistance." A final argument which I should perhaps mention, although I suspect I have already dealt with it in essence, was the submission that the trial Judge had put an unacceptable onus of proof on the defendant in saying that the defendant had to show what had happened to the vehicle;n the interval of which I have been speaking between 10 and 11 April. It does not seem to me that it really can be characterised as a question of onus. What the Judge was saying was that he accepted in substance the plaintiff's case up to the moment of the accident; that there was then an interval before the vehicle reappeared in the evidence, and that in the absence of an explanation of what happened in the interval he saw no reason not to remain persuaded, as he was, of the plaintiff having established his case on the balance of probabilities. My conclusion therefore is that the appeal should be dismissed with costs. Mahony JA I agree. The learned Judge was faced with the determination of issues of fact which were difficult to resolve. He was faced with a situation not unknown in the determination of issues of fact in which he had to determine between the evidence of two or more witnesses, each of whom he thought to be witnesses of truth but whose evidence was, at least on one view, inconsistent. In my opinion, the account of how the accident happened given by the learned Judge in the paragraph of the judgment to which Priestley JA has referred and the following paragraph is probably the correct account of how the collision occurred. I think there is in the evidence of Mr Drake and the other witnesses, if accepted, sufficient basis in fact for concluding that the accident came about because of the failure of the braking system to work efficiently and that this occurred in the manner which his Honour shortly and succinctly in those paragraphs indicated. Mr Coombs, who has taken every point available in favour of the appellant and has pressed them appropriately, rightly pointed out in this regard that there is the difficulty to which Priestley JA has referred; namely, that of accommodating the acceptance of Mr Kerr as a witness of truth with the fact that the accident occurred in the way in which his Honour indicated. His Honour adopted the approach to Mr Kerr's evidence which allowed of the possibility that there had 10 as URJ HYDEREPAIR PTY LTD v CAMERON (Mahony JA) 7 been, as he described it, "some intervening adjustment or repair" effected before the vehicle was reassigned to Mr Kerr after the accident. That is a possibility. Mr Coombs has properly pointed to the fact, which is conceded by Mr Holt for the respondent, that the possibility of such intervening adjustment or repair had not been canvassed with any of the witnesses. This is a matter which I think must be weighed heavily against the course which his Honour took, but in the end I would not determine that the course which his Honour took was wrong. I would refer also to the fact that in the evidence of Mr Kerr itself there are some internal inconsistencies. His Honour was, I think, entitled to accept Mr Kerr "a witness of truth": at least, on the evidence and in the light of what his Honour did, it is not for this Court to differ from his Honour's assessment in this regard. But this does not mean that his Honour accepted every incident in the evidence given by Mr Kerr. Indeed, in relation to whether there were in the braking system cracks of the kind to which the plaintiff and Mr McPherson referred, Mr Kerr, having said there were no such cracks; subsequently admitted, or in effect conceded, that there may well have been, he did not know. In these circumstances I think that it would be open to his Honour to adopt the course of preferring generally the evidence of the other witnesses to that of Mr Kerr in relation to the particular matter in question. It may be that his Honour did so. I agree with what Priestley JA has said in relation to the overall assessment of the matter and with the orders that he proposes. The result will be that the appeal will be dismissed with costs. Counsel for the Appellant: JS Coombs QC with W Trail Solicitors for the Appellant: Mallesons Counsel for the Respondent: The Hon WJ Holt QC with GM Watson Solicitors for the Respondent: GH Healey and Co