GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KEMPTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA, CLARKE and HANDLEY JJ 7 August 1990, 7 August 1990 [1990] NSWCA 73 Appeal from Common Law Division — Plaintiff injured in motor vehicle accident — Sole issue: was the plaintiff or some other person the driver of the motor vehicle? — Trial judge accepted plaintiff's account — Acceptance based on matters of demeanour and assessment of the witnesses — Not proper case for interference with judge's findings — No issue of principle. ORDER Appeal dismissed with costs. Mahoney JA On 10 November 1984 the plaintiff was injured in a motor vehicle accident. On 18 September 1987 Foster J gave judgment for the plaintiff for $220,000 upon the basis that the plaintiff was injured as a result of the negligence of a driver for which the defendant, the Government Insurance Office of New South Wales, was liable. The defendant has appealed to this Court against his Honour's judgment. The only issue which has been argued in the appeal is whether the plaintiff was, at the time of the accident, the driver of the motor vehicle. The grounds of appeal which were set forth in the notice of appeal and which were foreshadowed in a supplementary notice of appeal which was filed with the Court but not formally incorporated, have been reduced only to that issue. The cross-appeal which had been raised has not been pursued. The evidence in the proceeding is, in outline, short but it has, of course, some little complication. The evidence was detailed by the learned judge in his judgment as follows: "The evidence establishes clearly that at about quarter past eleven in the evening of that day the plaintiff was travelling in a station sedan which had been driven in a westerly direction along Red Range Road, Glen Innes, in the direction of that town. The vehicle quite clearly left the road in a bend at high speed, collided with a telegraph pole with sufficient force to snap it off, then continued on a not inconsiderable distance, whilst rolling over on at least two occasions. It finally came to rest on its driver's side close to an embankment of the road. The plaintiff was discovered in the proximity of the vehicle. Had the vehicle been righted, the plaintiff would have been on the passenger side of the vehicle. He was lying at an angle to the vehicle when he wa.s discovered. The particular position of his body does not in my view assume very much importance in the case. He received extensive injuries, the most important being a siynificant degree of brain damage. He was clearly unconscious for a considerable period of time. He underwent rehabilitative treatment at Parramatta Hospital and later at Armidale. He was not in a situation where he could be interviewed by the police in relation to the accident for a period of some eight months. When he was so interviewed he alleged quite clearly that he was not the driver of the vehicle at the time when this accident occurred, but that some other person whom he was 2 UNREPORTED JUDGMENTS unable to identify was in fact the driver. The only issue in this case is whether or not the vehicle was being driven by some unidentified person other than the plaintiff at the time when this accident happened. If the court finds that to be the situation then quite clearly the facts of the accident bespeak gross negligence on the part of that driver." The facts and the evidence which supported the cases put forward for the parties were analysed by the learned judge at some length. It is not necessary for present purposes to detail all of the evidence or to pursue each of the factual issues which has been raised. Mr Abadee QC for the appellant has taken the various points that can be taken on the evidence and it will be no disrespect to his detailed argurnent if I do not pursue each point that has been taken but go to what, in my opinion, is the central issue in the matter. The plaintiff's case, as it was presented for him at the trial, was that he had been to a party on a property some distance outside Glen Innes. He claimed that he had decided to go back to Glen Innes in his car. He said that on the way he stopped, that he met a man and that that man undertook the driving of the car following the man starting to drive the car the accident happened. The accident, as the learned judge indicated, was a violent one which involved the vehicle leaving the road, striking a telegraph pole, breaking the pole and rolling over. The plaintiff gave evidence which was, subject to the matter to which I shall refer, generally to the effect of the case to which I have referred. The learned judge accepted the plaintiff's case, again subject to the qualifications to which I shall refer. If the evidence given by the plaintiff be accepted in substance, then the learned judge's judgment was correct. It was not merely that there was evidence on which the learned judge could have found as he did; considering the rnatter afresh and again subject to the qualifications to which I shall refer, if the plaintiff's case as found by the learned judge be correct, then his Honour's conclusion in favour of the plaintiff was correct. However, as Mr Abadee has properly pointed out the matter is complicated by the aspects of the plaintiff's evidence to which the judge, in his detailed examination of the matter, referred. The plaintiff suffered drain damage as a result of the accident. He had, previous to the accident, already had several other accidents, probably some three in number, and had some significant degree of brain injury. The plaintiff had, as a result of those accidents, apparently been suffering from a form of epilepsy. As the result of the present accident the plaintiff was left with a significant deyree of hrain damage. The learned judge stated the matter in the following terms: "The plaintiff has a mild left-sided hemiparesis. He has some problems of left-sided balance and clearly his movements are slower and less co-ordinated than are the movements on the right side. He has suffered some personality change. It does not appear to be marked but obviously he is subject to moods and he is inclined to become irritable with the farnily in situations where he previously would not have been. There is some intellectual imparment. It is mainly in the field of memory any concentration. I am satisfied that he has problems in relation to the learning of new material or new skills; that his short term memory is fairly badly impaired, although his long term memory is not significantly impaired; he suffers headaches from time to time; he is able, however, to function in a relatively normal way in a home situation and he is able to express himself quite fluently and intelligibly although there is obviously some slowness and difficulty involved in his speech." \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KEMPTON (Mahone? JA) The plaintiff was, at the time of the accident significantly intoxicated. That was not in contest. His evidence was that the motor vehicle was stopped by him and that he picked up the person who he said was the driver while he was inside the property on which the party was being held. His evidence was that the party was being held some distance backf rom the entrance from the road to the property and that he stopped and picked up the person in question before he reached the gate. He adhered to that evidence and did not change it. However, a witness, Miss Pamela Wilson, who the learned judge accepted in preference to the plaintiff in this regard, gave evidence that this was not what happened. She said that the plaintiff did not stop in the relevant sense while on the property and that she saw him leave the property and go on to the road. I put that matter broadly but the thrust of her evidence was that the plaintiff did not have the conversation with the person to which he referred while he was on the property. The learned judge said: "T am satisfied on the evidence of Miss Wilson that he drove the vehicle continuously from its position where he commenced backing near the cattle ramp shown in the photographs down the driveway track to the gate; that he drove badly on the way down, nearly colliding with a parked vehicle; that he had some sort of a minor collision with some part of the cattle grid at the gate; and that he then proceeded out on to the highway. Where the plaintiff's evidence is in conflict with that, I clearly accept the evidence of Miss Wilson. I am not satisfied, however, that Miss Wilson to any significant extent observed what occurred with that vehicle after it went through the gate. She indicates that she turned her attention to other matters after the vehicle had left, although she did, in her recollection, hear the noise of its being driven along the highway towards Glen Innes. I am not satisfied that her evidence indicates any observation of that vehicle being driven for any significant distance after it in fact left the property. The learned judge dealt with this matter again at various times and at some length. His Honour said: "Tf the plaintiff's case depends upon my accepting that he stopped the vehicle whilst proceeding down the track towards the gate, that he had the conversation with this man whilst the vehicle was stopped in that position, and the man thereupon assumed the driving seat and drove the plaintiff's vehicle through the gate and out on to the road, then the plaintiff's case must fail. It is hopelessly in conflict with the evidence of Miss Wilson, which I accept. Needless to say, this conflict on this matter is heavily relied upon by counsel for the defendant." His Honour also said: "Although I have hesitated long over this aspect of the case, I have finally come to the conclusion that the evidence does not establish that the alleged meeting place with the alleged driver of this vehicle necessarily occurred within the confines of the property where this party was being held or, more importantly, within the field of observation of Miss Wilson. Consequently, the conflict between Miss Wilson and the plaintiff on this aspect does not finally determine the matter, although at first blush it seemed as though it probably did. The question therefore in my view remains open as to whether I am satisfied on the balance of probabilities that he plaintiff did in fact meet up with this other person whom he says assumed the driving of the vehicle. If I am satisfied that he did, then it is open on the evidence to come to a conclusion in my view that that meeting took place outside the field of observation of Miss Wilson. I then look to the only testimony as to this meeting which, as I have said already, is the 4 UNREPORTED JUDGMENTS testimony of the plaintiff. That has to be tested, of course, against what the plaintiff has said on other occasions and against the general probabilities arisirrg from the situation that evening and, of course, the facts of the accident itself." Having set out these basic facts and his views in relation to them, the judge came to his assessment of what should follow from the impact of the facts upon him. His Honour was, I think, satisfied that the plaintiff was not deliberately lyiny. The learned judge adverted to the possibility that, as he said, "the plaintiff could, as a matter of conscious guile, have contrived deliberately this story of meeting up with a man who then assumed the driving". His Honour also adverted to the possibility that "the plaintiff, because of his brain-damaged condition would not have had reasonably the ability to concoct such a story." I think that his Honour, at that part of his judgment and elsewhere, took the view, and took it from what he saw of the plaintiff in the witness box, that the plaintiff was endeavouring to tell the truth or, at the least, that he was not lying in the sense of saying something that he believed to be untrue. The accounts which the plaintiff gave of the accident were carefully assessed by the learned judge and I would conclude with him that the plaintiff was not deliberately lying. His Honour also saw support for what the plaintiff had said in the evidence which had been given by other persons. His Honour referred, inter alia, to two things. First, he referred to what had been said by the police officer who had attended the scene of the accident, admittedly some little time after the accident and had subsequently, some months later, interviewed the plaintiff. The learned judge referred (and I need not go into the detail of the matter at great length) to the account which the plaintiff gave to the police officer, Sergeant Nugent, on 1 July 1985. The sergeant had recorded the questions and answers in his notebook and his evidence sets forth the detail of them. The evidence in question was recorded in the following terms: "Q. Did you record those questions and his answers in your notebook? A. I did. Q. Would you tell what you said and what he said? A. I will. Yes. It was 11 am on 1 July 1985 at a property 'Why Worry', Ben Lomond, an interview between Myself and Gregory John Kempton. Elis wife was present during the interview. I said 'I am making enquiries into a motor vehicle accident which occurred on the Red Range Road about 5 kilometres east of Glen Innes at about 11.15 on Saturday, 10 November 1984. The motor vehicle involved in this accident was a red station sedan MCK180. Was this your vehicle?' He said 'Parts of it.' I said "Were you the driver of the vehicle at the time of the accident?. He said 'No. I was not.' I said "What can you tell me about your movements on that day?' He said "Well, I know I went to a party. It was on a property out at Red. Range. I know I had a bit to drink. It was getting late and I wanted to go home. I remember looking for him when I was ready to go. I couldn't find him, so I got in the car and was going to have a sleep. Someone came over and was giving me a hard time. I think they thought I was going to drive back to Glen Innes. I can remember just driving away from the party and up the dirt track and stopping to talk to a bloke that was walking up towards the main road. I got out of the car and was talking to this bloke. I know he said something about going to town. I can't remember much after that.' I said Do you remember the name of this person?' He said 'No, not really, but something tells me his name was Danny or Dan. I can't remember.' I said 'Do you think this person could have been driving your car at the time of the accident?' He said "Yes, I do.' I said What makes you say that?' He said 'Well, I lost my licence once for drink driving and I had just \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KEMPTON (Mahoney JA) got my licence back and I didn't want to get caught: again. Besides I knew I had been drinking.' I said 'Are you aware that at the time of the accident you were a disqualified driver?' He said 'No, I didn't. I had my new licence.' At this point his wife said 'That's right" seryeant. Greg lost his licence at the court and handed it in and about two months' - (Objected to) Q. Just go on with your conversation with Mr Kempton? A. All right. I said 'Can you remember any of the clothing worn by the person?' He said 'No, but something tells me he had dark clothing on.' I said 'Can you recall passing any motor vehicle prior to the accident?' He said 'No, I can't remember.' I said 'When you say you wanted to go home from the party, do you mean that you had intentions of driving home'. He said 'No. I took someone out with me. I wish I could remember his name'. I said "Do you deny that you were driving your vehicle at the time of the accident?' He said 'Yes, I was not driving. I wish I could remember what happened.' I said 'Are you in the habit of letting other persons drive your car?' He said 'T have done it in the past.' I said 'Can you rernember anything else about the accident or the events leading up to the accident?' He said "No. I have been trying to remember as much as I can. I just get little flashes every now and then.' He was informed that I would report the facts for the information of the Superintendent of Traffic." His Honour saw what was said by the plaintiff then as providing some confirmation of the fact at least that the plaintiff was not telling deliberate lies. The extent to which the self-serving statement could be used as the basis for a conclusion of fact in other respects was apparently not the subject of argument and it was not referred to in his Honour's judgment. His Honour saw, at least to the extent to which I have referred, what the plaintiff said to the police officer and the police officer's account of it, as providing some basis of support for the plaintiff's case. His Honour saw also in what Sergeant Nugent had said as to what took place at the accident, some other support. The plaintiff had said that he could describe, to some extent, what the person who, on his case, was driving the car at the time of the accident, looked like and how he was dressed. He gave some account of this to the police officer although, as far as the evidence is contained in the statement that was made, that account appears to have been reasonably fragmentary. But the sergeant, in the course of evidence and in some detail, indicated that at the time of the accident he had seen at the scene of the accident or near it another person "that fitted the description that he (the plaintiff) gave" him. The police officer referred in some little detail to that person and how he was dressed. It is not necessary to add to this judgment the detail of what was said but, if accepted, that evidence could provide some support for the view that what the plaintiff said as to the other driver was true. In saying this I am conscious, of course, of the matters to which Mr Abadee properly referred, for example, that the description given by the plaintiff was fragmentary and perhaps did not extend to all the details to which Sergeant Nugent referred and to which the plaintiff, in the course of his evidence in chief in the present case, had referred. But taking all those matters into account, his Honour was entitled, I think, to find some support, the extent of which is debatable, for the plaintiffs case in what the sergeant gave in evidence. The second matter to which the learned judge referred was the evidence of the ambulance officer who was present at the time. Without going into the detail of it, the ambulance officer suggested, I think, that there was a person at the scene 6 UNREPORTED JUDGMENTS of the accident whose description might provide the kind of support for the plaintiff's case to which I have referred. The learned judge having come to those conclusions, the question was what decision he should make as to whether the plaintiff, or someone else, was driving at the time. There were essentially two questions that had to be answered by the learned judge. One was whether the plaintiff's account was to be accepted at all, that is his account of whether there had been another man who ultimately drove the car; and the second question was whether, if there was another man, the encounter with him took place inside or outside the property. The learned judge concluded, in my opinion correctly, that the encounter, if there was one, did not take place within the property as the plaintiff had said. The Court has not heard Mr Murray for the plaintiff on this particular finding but there is no ground of appeal or notice of contention to suggest that his Honour was wrong in this finding. I shall accept, for present purposes, that his Honour correctly found that the plaintiff's account of stopping within the property and not outside on the road was incorrect. That did not require that the learned judge should find that the whole of the plaintiff's account was to be rejected. It is, of course, plain law, as Mr Abadee has necessarily accepted, that a court in finding fact may accept part of a witness's evidence and reject another part. I put that in general terms: there are, of course, cases in which the circumstances are such that this may not properly be done as part of the fact finding process. But in the present case it was in principle, in my opinion, open to the learned judge to find that, although the plaintiff was inaccurate as to the place at which he met the other person, in fact he did meet and invite that other person to drive the vehicle back to Glen Innes with him. That being so, the question is whether, in this case, the learned judge should have so found or, to put the matter more accurately, whether as on a rehearing before this Court such a finding should be made. That leads to what in the end, in my opinion, is the crucial question in the case. This Court must, of course, deal with the question of fact as to who was the driver at the relevant time upon the basis of a rehearing as indicated in Warren v Coombes (1979) 142 CLR 531 and other cases which have followed that decision. If the Court were free itself to come to its own conclusion, unrestricted by what the learned judge had said, it would be necessary to enter upon a detailed examination again of the evidence. But, as has been accepted, where the finding of fact of the trial judge is affected by, and I put the matter in general terms, the demeanour of a witness in the witness box before the judge, then there are restrictions upon the extent to which this Court, as an appellate court albeit on a rehearing, can and should depart from the conclusions of the learned judge. Mr Abadee has properly pointed out that, accepting the principle as formulated in the case to which he mainly referred, namely Chambers v Jobling (1986) 7 NSWLR 1, there are qualifications to the restrictions which, prima facie, are placed upon the appeal court. He referred, without dealing with the matter exhaustively, to cases in which the findings of the learned judge, albeit based upon demeanour and matters of credibility of the relevant kind, are in fact contrary to non-contestable aspects of the evidence or are generally so wrong that the appeal court may intervene and put them aside. \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KEMPTON (Mahoney JA) Two questions were therefore raised: firstly, whether this is, as it has been described, a demeanour case; and secondly, whether if it isr this Court can and should come to a different conclusion on the central issue from that to which his Honour came. The Court, in argumentr directed attention to the question whether this is propelly a demeanour case. In my opinion it is. The learned judge obviously and with some carer directed his attention to this matter. His Honour, in an early part of his judgment, referred to the question of demeanour. He was at some pains to set forth the process of reasoning which led him to his conclusions and he stated the matter in terms of demeanour and the like. His Honour quite properly indicated, for the assistance of those who might read his judgment, the basis upon which he had come to his conclusion. In my opinion, his Honour thought that he was dealing with the matter upon a demeanour basis. But the suggestion was made in argument that the kind of finding which he was required to make, and the basis on which he was to come to the conclusion that the plaintiff was correct in his evidence that he had met the other man but incorrect as to where he met him, did not derive from or obviously derive from matters of demeanour or the like. Without dealing with all of the matters that have been put by Mr Abadee, I am satisfied that his conclusions were in fact affected by his Honour's assessment of the plaintiff. His Honour saw the plaintiff as being a person whose mental capacity, whose capacity to give evidence and whose manner of giving evidence were all affected by the brain damage which he had suffered in this accident and perhaps in the earlier accident or accidents. I think that in that particular respect his Honour based his conclusion as to the acceptability of the plaintiff's evidence upon what he saw of the plaintiff in the witness box and what he saw the plaintiff saying and doing. I think that. essentially this is a demeanour case and that it is one in which the restrictions upon the appellate court, illustrated in Chambers v Jobling, apply. The next question is, then, whether his Honour's decision was so far wrong that this court should upon one or other of the bases to which reference was made in argument put aside the conclusion at which he had arrived. There were, obviously, a number of unsatisfactory elements in the case. The plaintiff's evidence was obviously inaccurate in not one but more than one respect. Mr Abadee has made what can be made on behalf of the defendant for that. But this is not, of course, an unprecedented situation in the context of a difficult case. In the end it was, I think, a matter for the learned judge to come to the conclusion whether, on the central issue, he was satisfied that there had been another man. His Honour was, as I have said, conscious of this particular matter and his Honour said: "Tf I accept, as I do, that there was such a man, there is very little difficulty in taking the next step, on the balance of probabilities, of accepting that the man offered to drive the plaintiff to Armidale. This would have been a better result from the plaintiff's point of view than merely going to sleep in the vehicle off the highway. " In my opinion his Honour was entitled to come to that conclusion: he was not obviously wrong, in the sense referred to in the cases. Reviewing the matter myself, subject to the restrictions which have been imposed or without them, I have come to the same conclusion as that arrived at by his Honour. I have given consideration to the question whether, because of the plaintiff's mental condition or for other reasons, the situation was that the plaintiff's story, being one in which 8 UNREPORTED JUDGMENTS he believed, yet was one which arose from his imagination or from reconstruction or otherwise. I have considered whether it could be said that the plaintiff had reconstructed the events in some way so that, while believing them, they were, in fact, an incorrect reconstruction of what took place. That does not appear to have been put to the plaintiff, at least ir any substantial way, at the trial and it may well be there were good reasons why that kind of contention would not have been put or accepted. The learned judge does not seem to have featured that in his judgment and it was apparently not put or not put as a substantial matter before him. Mr Abadee did not, and I think quite rightly, press that matter before this Court. In deference to the difficulties in the case and to the arguments which have been put, I have dealt with the main issues which have been raised in the case. But in the end, taking the case as it was presented to the judge and giving proper regard to his findings, I have come to the same conclusion as that to which he came. I think, on the probabilities, the plaintifE was not the driver of the vehicle at the relevant time. It therefore follows, in my opinion, that the judgment given in his favour was correct and the appeal should be dismissed with costs. Clarke J I agree with the orders proposed by Mahoney JA. It seems to me that this was essentially a case in which the trial judge's assessment of the plaintiff was a critical factor. So much appears clear from a number of passages of his Honour's judgment in which he considers whether to accept a fundamental assertion of the plaintiff that another person was driving the car at the time of the accident. Accordingly, it is necessary for the appellant to establish on grounds which do not depend on credibility that the finding was clearly wrong. This is a strict test and an appellant seeking to reverse a credibility based finding faces a stern task. While there are many unusual features of this case I do not think that in the end the appellant has discharged the heavy onus cast upon it. Handley J I also agree. I also, in particular, agree that the appellant in this case has not discharged the heavy onus, which lies upon an appellant in a fact case where the findings of the trial judge are based significantly on questions of demeanour, of establishing that the case warrants appellate intervention. I therefore agree with the orders proposed. The orders of the Court, therefore, are that the appeal is dismissed with costs. Counsel for the Appellant: A Abadee QC/M Cranitch Solicitors for the Appellant: Mr Stephen Mills, Newcastle Counsel for the Respondent: B Murray QC/CE O'Connor Solicitors for the Respondent: Pollack, Greening and Hampshire, Grafton