THE NOMINAL DEFENDANT v WRIGHT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and MEAGHER JJA 26 November 1990, 26 November 1990 [1990] NSWCA 139 NEGLIGENCE — contributory negligence — no question of principle. DAMAGES — quantum — no question of principle. Samuels JA This is an appeal from a judgment of Master Greenwood in which he found negligence against the appellant and assessed the respondent's damages in the sum of some $35,000. The action being brought against the Nominal Defendant, it comes as no surprise to learn that the respondent's case was that he had been forced to swerve off the road by the appearance in front of him of a motor vehicle on its incorrect side of the road. In taking this avoiding action he had, he said, lost control of his car and it struck a telegraph pole, he sustaining the injuries which were the subject matter of the proceedings. He was, according to the Master, an unsatisfactory witness, there being not inconsiderable discrepancies between the story he told in the witness box and the laconic account that we find in the police notebook. Furthermore, his sworn evidence was internally inconsistent and the account in the police notebook omitted, according at least to the submissions made by counsel for the appellant, one at least of the allegations which any reasonable person would have expected to have been included. With all respect to the respondent, it does not exaggerate the Master's assessment of him as a witness to say that he was found to be shifty, unreliable, untruthful, implausible and, though this is by no means his fault, unfortunately of limited intelligence. The only relevance of the last element in this case is that it tended to make his evidence a little difficult to follow and required the tribunal of fact to discriminate carefully between clumsy attempts to deceive and the inability to convey clearly an honest account of what had happened. But in the end the Master said this: Whilst I am not, as I have indicated, satisfied with the nature of much of the plaintiffs evidence, I am satisfied that his basic contention that he took evasive action when he saw a vehicle travelling generally in his direction was a contention which I accept from him as the truth. I do not accept his embellishments on that story." Then a little later on the Master indicated that he was satisfied that there was a vehicle travelling towards the respondent, which forced him to take avoiding action, he, the respondent, having been driving on his correct side of the road. There was, I should add, another issue, which was that at the time the respondent was under the influence of intoxicating liquor. It seems plain, despite some effort by the respondent to conceal the fact, that he had been drinking the night before the accident from about half past seven or so to eleven pm or later and had realised that he was in no fit condition to drive and had rested at his companion's house, setting out at two o'clock in the morning of the day of the accident. 2 UNREPORTED JUDGMENTS I do not think that I need to deal with the facts in great detail except so far as it is necessary in order to examine the submissions put forward by Mr Morrison for the appellant. The two basic submissions are these: First, that there were errors in the Master's logic and chain of reasoning leading to his conclusion that the respondent had been forced off the road by a vehicle travelling on its incorrect side; secondly, the Master's decision was improbable; thirdly and in the alternative, that if the unidentified driver had been negligent, then the Master should have found contributory negligence on the respondent's part. We granted leave to amend further the amended grounds of appeal to add an additional ground 7 that the Master erred in failing to give weight to the evidence relating to intoxication. I will deal with that point first. In the course of the evidence documents from Ryde Hospital were tendered as business records under sl4CE of the Evidence Act. There was no contest but that they satisfied that description. When they went in counsel for the respondent observed that "The plaintiff does not get to be cross-examined". Counsel did not suggest that an application had been made to produce the author of the document but it remains the fact that he or she or they was or were not available to give evidence or to be cross-examined. The document in question consists of what appears to be a letter written by the chief executive officer of the Ryde Hospital to a colleague or to another hospital, which accompanied the hospital records, and which asserts that the respondent when admitted was heavily intoxicated. The other document in the file is, I would think, the history and notes taken by a resident medical officer on admission, and that says that the respondent was intoxicated. There was evidence that the respondent was carrying in his car a quantity of bottles of beer, which were broken in the collision with the telegraph pole. From that the Master inferred that there was a logical explanation of the presence on the respondent of the smell of alcohol. The Master had assumed that this was a factor which might have induced whoever it was to make the diagnosis of intoxication. I would myself have inferred that the letter was based wholly on the admission notes and that the admission notes may have been influenced by the smell of alcohol, which in turn might have been produced as the Master thought. The Master says about the documents, "The author of that document was apparently not available for cross-examination and I am not prepared without more evidence to accept the contents of that document as the position which obtained". Then, having referred to the broken beer bottles, the Master said, "I would not be prepared without more evidence to make a finding on the contents of the hospital admission document" and he declined to make a finding of intoxication. Mr Morrison's point is not, of course, that such a finding was not open to the Master, but rather that the Master failed to give adequate reasons for his failure to give weight to the document. He was not bound to give it any weight, it seems to me, and I rather thought that Mr Morrison finally agreed with that proposition, but nonetheless maintained that if that was the view which the Master proposed to take, he should have explained why he had failed to do so. It used to be said that the doctrine of The Moorcock (1889) 14 PD 64, particularly at 68, was an argument of last resort, invoked by counsel when nothing better was in the offing. It seems to me that the duty to give reasons is now filling the place The Moorcock once occupied. I have indicated what the URJ THE NOMINAL DEFENDANT v WRIGHT (Samuels JA) 3 Master said and it seems to me that that explanation is an adequate compliance with such duty as lay upon him to give reasons for the various aspects of his judgment. Bearing in mind the circumstances of the case and the fact that the allegation in relation to alcohol was supported only by documents, together with an explanation of the smell, which might have had great effect upon the admitting doctor, and bearing in mind that the respondent was semi-conscious as a result of the impact, it seems to me the Master was perfectly justified in declining to allow that material to support a finding of intoxication, and gave adequate reasons. Turning to the other grounds, the first of them is that the respondent failed to mention in the statement to the police, made eleven days after the accident, that the other vehicle was on its incorrect side of the road. I confess that I find this submission wholly unsound. The account given is, so far as is immediately relevant, as follows: "As far as I can remember I swerved to miss a car coming the other way. I lost control of the vehicle and hit the pole, as far as I know". I would have thought that the reference to swerving to miss a car adequately implied that it was a necessary manoeuvre, assumes that the respondent was on the correct side of the road and accordingly indicates that the other vehicle was on its incorrect side of the road. I see nothing strange in the way in which that was formulated. It must be borne in mind that although the Master does not expressly say that he placed reliance on his assessment of the respondent's credibility, that must certainly have been involved in the Master's conclusions. He found the respondent unsatisfactory in many ways, as I would think he was. The Master's conclusion, however, must have been based upon the fact that, having seen the respondent give evidence, he was satisfied that at least the basics of the story were acceptable and that must involve a favourable view of the respondent's credit. In addition to the cases which are commonly quoted upon this point it is now necessary to add the decision of the High Court in Abalos v Australian Postal Commission, 15 November 1990, as yet unreported, in which the High Court in an unanimous judgment emphasised that the mere fact that a judge at first instance makes no express reference to demeanour or credibility cannot be taken as indicating that he or she did not have regard to those elements. I would have thought that the Master undoubtedly took account of them here. It was therefore in an effort to avoid the cases to which I have referred, and in particular Brunskill and anor v Sovereign Marine and General Insurance Co Ltd and ors (1985) 62 ALR 53 at 57 that a submission was put that the Master's decision was glaringly improbable. While it may be that other judges would have come to a different conclusion, this was typically the kind of case in which a careful analysis by a judicial officer might lead to the conclusion that, casting aside all the embellishments and downright lies that the respondent had told, there was left substantially undamaged the basic story which was worthy of acceptance. It seems to me impossible to say that the material in the case was adequate to establish the conclusion that the Master's finding was glaringly improbable. Alternatively it was put that the Master should have found that the respondent was the author of his own misfortune, having failed to take reasonable care for his own safety. The particulars of contributory negligence which were given in the case included failing "to warn the driver of the alleged unidentified vehicle 4 UNREPORTED JUDGMENTS of the danger of proceeding", which might be difficult to satisfy when vehicles are approaching one another at possibly a combined speed of one hundred and forty kilometres an hour. However, it was put that the respondent was travelling at excessive speed and, I think, failed to keep a proper look-out, because emphasis was placed upon the fact that the respondent saw the other vehicle when it was only two, three or four car lengths away. However, if one assumes, and one must assume this in order to examine the submission of contributory negligence, that the respondent was forced to swerve by the presence of the vehicle approaching him on its incorrect side of the road, there seems to me to be very little room for allegations of contributory negligence. The most that can be said against the respondent really is that he was travelling in excess of the speed limit. But there is such a disparity between that failure to comply with the proper standard and the failure demonstrated by the driver of the unidentified vehicle, and in the difference between the conduct of the two of them, that I would not think it possible to accept that the appellant had discharged the onus of proof. Accordingly, for those reasons the appeal in my opinion fails. The respondent filed a cross-appeal alleging that the damages were inadequate. Thope that I will not be thought to be doing scant justice to Mr Leslie's argument when I say that in my view it is quite clear that the assessment of damages, bearing in mind all the evidence about the respondent's prior history, fell well within the boundaries of the Master's discretion. It seems to me therefore that the cross-appeal also fails. Priestley JA I agree. Meagher JA I also agree. SAMUELS JA: The orders of the court therefore are that the appeal and the cross-appeal are each dismissed with costs. Counsel for the Appellant: A MORRISON Counsel for the Respondent: AJ LESLIE QC/H MUNDY Solicitors for the Appellant: G LEEDS, PARRAMATTA Solicitors for the Respondent: E FREDERICKS and CO, PARRAMATTA