WAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 4 November 1991, 13 November 1991 [1991] NSWCA 62 MOTOR VEHICLE ACCIDENT — appeal by unsuccessful plaintiff injured in accident — appeal almost entirely on factual matters — no question of principle decided — no basis for interference by appellate court. Priestley JA The accident, the claim, its dismissal. In the late afternoon of Easter Saturday, 29 March 1986, a Toyota utility owned by Mr W. Conroy, the appellant, was being driven from Lightning Ridge in northern New South Wales, on the road to Hebel in Southern Queensland. There was an accident and Mr Conroy was injured. His two principal injuries were to his right arm and his right temple. In the words of one of the specialist surgeons who treated him, the injury to his arm was "a severe degloving injury of his right upper limb involving the upper arm and the right forearm in the proximal half and the right upper arm in the distal one third. The wound was extensively ingrained road dirt and what looked like manure and there was much muscle tissue damage'. This injury permanently weakened the arm. The ability of the appellant, who was a roof tiler, to earn his living in his occupation was seriously affected by the reduced strength and capacity of his right arm. The appellant brought proceedings in the Common Law Division of the Supreme Court against the Government Insurance Office of New South Wales (the GIO) in which he alleged that he had been a passenger in the utility at the time of the accident, that it was being driven by Mr P. Le Guier when the accident happened and that the accident and the injury to the appellant were caused by Mr Le Guier's negligent driving. In the defence it first filed, the GIO formally put all the paragraphs in the appellant's statement of claim in issue; on 5 October 1989, when the appellant's claim came on for hearing before Master McLaughlin, the GIO was given leave to file an amended statement of defence in which it asserted that the appellant was not a passenger in the utility as alleged. At the trial, the GIO contended that the appellant himself had been the driver of the utility at the time of the accident. Master McLaughlin was not satisfied that the appellant had been a passenger in the utility when the accident happened, and as the only negligence alleged by the appellant was as passenger against Mr Le Guier as driver, he dismissed the appellant's claim. The appellant has appealed against the dismissal. Outline of appellant's submissions. In presenting the appeal, Mr Toomey QC for the appellant began by acknowledging that he bore a heavy burden in trying to overturn the Master's conclusion, based as it was on his not being prepared to accept the appellant's evidence that he had been a passenger in the utility when the accident happened. Further, the Master did not accept the evidence of Mr Le Guier either, who said he had been the driver of the utility. The Master saw and heard these witnesses give their evidence and the accepted practice on appeals, as recently 2 UNREPORTED JUDGMENTS demonstrated in Abalos v Australian Postal Commission (1991) 65 ALJ 11, is that findings such as the Master's non acceptance of those witnesses will not be altered unless there are materials in the evidence of such strength as to show that the primary judge must have been mistaken in the conclusion he formed based on credibility and demeanour. For the appellant it was argued: 1, that there was at least one factual matter which stood firmly in the way of the Master not believing that the appellant was a passenger in the utility as he claimed, and 2, that even if that matter was not of the compelling weight asserted by the appellant, nevertheless, (a)(i), it was on any view an important matter in the appellant's case and (ii), the Master had not recognised its importance and had failed to consider it properly in his overall assessment of the case, and (b), there were other aspects of the case to which the Master had failed to give proper consideration; when all the matters which it was claimed the Master had failed to consider properly were taken together, they showed that the appellant's case had not been properly considered by the Master and the appellant was at the least entitled to have the judgment against him set aside and a new trial ordered. These submissions were based on a document called "Proposed Further Grounds of Appeal" which was allowed to be filed at the commencement of oral argument; in fact, this document was treated as replacing the grounds in the notice of appeal. I will describe the submissions amplifying the grounds more fully after summarising the material in evidence before the Master and the way he dealt with it. The facts and evidence relevant to the appeal. There seems to be no doubt that both the appellant and Mr Le Guier were in the utility when the accident happened. This was about 6.15 pm. A passing car took the appellant and Mr Le Guier back to the Health Centre at Lightning Ridge. A doctor attended to the appellant at the Health Centre, preparatory to his being taken by ambulance to Walgett, which subsequently happened; from Walgett he was taken by air ambulance to Sydney and immediately admitted to the Prince of Wales Hospital. Mr Le Guier stayed with him at the Health Centre until he was taken away in the ambulance. While both the appellant and Mr Le Guier were at the Health Centre, Constable Gordon came to see them, to obtain details of the accident, of which he had been notified. He spoke first to the appellant who gave him some particulars but, as Constable Gordon said, "then became rather ill with pain", and was given an injection of Pethedine; he was not then asked anything further. Constable Gordon then spoke to Mr Le Guier. The constable's evidence before the Master was that Mr Le Guier told him "that a third person was in the vehicle at the time who he stated was an Aboriginal person and that person was the driver of the motor vehicle at the time. That person had not remained at the scene and had left prior to any other person rendering assistance. Mr Le Guier gave an explanation that they had swerved to avoid an oncoming vehicle yet he was unable to describe the vehicle at the time". At a later stage of his evidence in chief Constable Gordon said that he thought Mr Le Guier had told him in this conversation that the utility had finished on its roof. Constable Gordon said he asked Mr Le Guier detailed questions both about the oncoming vehicle and the Aboriginal, but that he was unable to describe either the vehicle or the Aboriginal or what clothing the Aboriginal had been wearing or even a first name. Constable Gordon also said that he was seated next to the appellant, who was lying down, when he spoke to him and that "there was a reasonably strong smell of alcohol" on his breath. When he spoke to Mr Le Guier, he also was lying down and "had a strong smell of alcohol". WRAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JA) On Sunday 30 March Constable Gordon inspected the utility at a yard in Lightning Ridge. The evidence is silent about how it got there, who had taken it there, and what, if anything, had happened or been done to it between the time of the accident and the time it was left in the yard. In evidence, Constable Gordon gave a general description of the damage to the utility. Photographs of the utility, taken the following day, were later put in evidence. They show extensive damage, both front and rear windscreen missing, and considerable damage along the driver's side; they also show little damage on the passenger's side and none on the passenger's door. The external rear vision mirror on the passenger's side was undamaged. Constable Gordon said that when he looked at the utility both the driver's window and the passenger window were wound down and there was a small amount of blood on the driver's side pillar. He also saw a small amount of blood on the seat approximately between the lefthand passenger and the middle passenger. He added that he did not see any other signs of any blood or other injury material. In cross-examination Constable Gordon was shown photographs of the inside and outside of the utility's passenger door. He agreed that there appeared to be brown marks on the door, "very much like dried blood". Asked to agree that they were blood stains he said "They could be any kind of stains", although he agreed with the cross-examiner each time it was put to him that they were consistent with being dried blood. After inspecting the utility in the car yard, Constable Gordon went to the scene of the accident. He said that at that point there was a shoulder on the road of a fine gravel beside which there was grass; the road was "almost dead straight for as far as you can see" and was standard twenty foot carriageway with a twelve foot shoulder. He said vehicles should be able to pass each other on the bitumen "without any problem whatsoever". Constable Gordon then made a sketch plan of the accident scene on which he noted skid, gouge and other marks apparently made by the utility immediately before and during the time its driver lost control of it. He explained that crosses on the sketch plan indicated intervals where there were gouge marks which would indicate where the vehicle had rolled and gouged the road, these occurring at intervals of ten, ten and eight metres. He also noted that he had located at the scene nine stubby bottles. On Monday 31 March Mr Cook, the appellant's brother-in-law and Mr Dickson, a friend of the appellant, who had been fishing at Walgett over the Easter weekend and had heard on Sunday 30 March of the appellant's being involved in an accident, went to the yard at Lightning Ridge where the utility was. They took the photographs which later became exhibits. Mr Dickson said that he saw blood on the passenger's door trimming side, a bit on the dash and on the outside of the passenger door. He pointed to the marks on the photographs about which Constable Gordon had been questioned and said they represented the blood he had seen. On another aspect of the case, the following parts of his cross-examination strike me as interesting: "JENKYN: Q. I suppose when you first got to see your friend Mr Conroy you asked him how the accident happened? A. I didn't really because I was more concerned about him. I asked him how he was. Q. At some stage did you ask him, 'How did that happen?' A. I can't remember asking him anything like that. Q. Come on, Mr Dickson, he is a friend of yours, is he not? A. He is a friend of mine. 4 UNREPORTED JUDGMENTS Q. You told the Master you have seen him on eight or nine occasions since this accident? A. Yes. Q. Do you seriously say to the court that at no stage have you asked him how did the accident happen? A. I don't see any reason to. It is none of my concern, how an accident happened. Q. Didn't you ask him at any stage between when the accident happened and today - even sitting outside the court today; you say at no stage have you asked him, How did the accident happen? A. Not that I can recall." The following day the cross-examiner briefly returned to this topic: "Q. I asked you yesterday whether you could remember having any conversation with Mr Conroy about how the accident happened. Have you given that more thought overnight as to any conversation that you might have had with him? A. I never really asked him what happened. Q. You have not recalled overnight any conversations that you might have had with him about how the accident occurred? A. No, I might have asked him, 'How is your arm', how it feels, but he gets aggro about it and doesn't talk." Mr Cook's evidence about the blood was to the same effect as Mr Dickson's. Part of his cross-examination is to my mind interesting in the same way as that set out from Mr Dickson's evidence: "Q. I suppose when you went to the hospital you asked him how he felt? A. Yes I did. Q. You stayed for a while at the hospital? A. I stayed for a while, yes. Q. You asked him how the accident happened? A. No. Q. I beg your pardon? A. I just asked him once and he just got upset too much. Q. When did you ask him that once? A. When I first visited him at the hospital. Q. And you asked him how it happened? A. Yes, that is right. Q. And what did he say? A. He didn't say much at all really because he was in too much pain to worry about that. Q. Doing the best you can you said, 'What happened, how did the accident happen'? A. Yes. Q. And what did he say to that? A. He didn't say much at all because he was in too much pain. Q. I want to know what that much was? A. I can't remember. Q. Did you speak to anyone else about how the accident happened? Did you find out that Mr Le Guier was also involved in the accident? A. No, I haven't. " A request from the police at Lightning Ridge was made to Randwick Police Station for someone to interview the appellant while in the Prince of Wales Hospital. Constable Kirwan went to see him on Tuesday | April 1986. The appellant answered his questions. Constable Kirwan had the questions and answers typed. They became Exhibit 5 before Master McLaughlin. The relevant part of Exhibit 5 is as follows: "I said to him 'What is your full name, address and date of birth?' He said 'Wayne Phillip Conroy. I live at 26 Patterson Road, Lalor Park. My date of birth is 22.8.55. My home phone No is 6248960.' I said 'Are you still the owner of vehicle No MQW388?' He said 'Yes.' I said "What type of vehicle is it?' He said '1983 Toyota Hilux four wheel drive. ' I said "How long have you owned it?' He said 'I have had it since new.' I said 'I now make a demand upon you to supply me with the name and place of abode of the driver of veh MQW-388 which is alleged was guilty of an offence under the Motor Traffic Act in Castlereagh Highway, Lightning Ridge on the 29.3.86, when it was involved in an accident?' He said 'I don't know who was driving. * WRAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JA) I said 'Were you the driver?' He said 'I don't know. I can't remember'. I said "What do you remember about the collision?' He said 'Nothing. I don't even remember going to town.' I said 'How many people were in your vehicle at that time?' He said 'I thought there would have been about three.' I said 'Where were you going before the accident?' He said 'We were going from Lightning Ridge to where we were staying. ' I said 'And where were you staying?' He said 'Habal.* It's just over the border in Queensland. ' I said 'Do you know who was in the car with you?' He said "'No* really.' I said "Were you drinking alcohol before the accident?' He said 'I think I would have but it wouldn't have been much." *(sic) In his evidence in chief before the Master, the appellant said: in the morning of Easter Saturday he had arranged with Mr Le Guier that Mr Le Guier would drive the utility back to the property at which they were staying near Hebel, when they went back that night; during the day an Aboriginal asked the appellant for a lift to Goodooga which was in the direction he and Mr Le Guier would be going; the appellant agreed, and the three of them later set off with Mr Le Guier driving, the appellant sitting next to the passenger side door and the Aboriginal sitting in the middle of the one bench seat of the utility; he could not remember the name of the Aboriginal; after they started out he dozed off; he then could only remember "a couple of flashes as the smash was happening... I just get flashes of the vehicle turning over and just like getting thrown around in the cabin sort of thing"; he could not remember getting back to Lightning Ridge and had only hazy recollection of anything that happened there; he had some memory of events in the plane and then of becoming conscious after his arm had been operated on in the Prince of Wales Hospital; he was in pain for considerable parts of the time he was in hospital and became very depressed; he had no memory of speaking to Constable Gordon (or anyone else) at the Health Centre at Lightning Ridge, nor of the conversation with Constable Kirwan on | April 1986. The appellant said, in cross-examination, that when Mr Le Guier first came to visit him in the Prince of Wales Hospital he told him that he (Mr Le Guier) had told the police that the Aboriginal was the driver. No further details of the conversation were sought from the appellant, or given in re-examination. Also during cross-examination of the appellant, counsel for the GIO asked him on a number of occasions whether it was not true that he had been the driver of the utility and that he and Mr Le Guier had concocted the story both of the Aboriginal as passenger and Mr Le Guier as driver. He denied these allegations. He was cross-examined closely about the Aboriginal; as to appearance and _ his subsequent efforts to locate him. He said he had known him by sight, but not by name and apart from keeping an eye open for him on an occasion when he was in Goodooga had made no effort to find him. The description he gave of him would have been unhelpful so far as identification was concerned. After describing him as having shorts, T-shirt and skinny legs he added "it's a bit hard seeing one from the other unless he is your next door neighbour or good friend." Mr Le Guier gave evidence on the passenger/driver question consistent with that given by the appellant, only fuller, because he was not injured in the accident and had no interruptions to memory. He said he was driving, about ten to fifteen kilometres out of Lightning Ridge up the Castlereagh Highway when he saw a car coming towards him. Then, "T just kept on continuing on my line, and so did the other vehicle. I think we were sort of starting to get pretty close. 6 UNREPORTED JUDGMENTS Q. How far is 'pretty close'? A. Sort of 50; 50, 60 metres before I done anything myself. Q. What did you do? A. I swerved off to the lefthand side of the road. Q. Why did you do that? A. Well, he was sort of a bit central in the road and I thought he'! move over to there and give us a bit of room each way, but he sort of seemed to swing in the middle, so I swerved over and two of my wheels went into the dirt; and as he went past - and when I went to take it back onto he road, it tended to slide in the dirt; and then, as it approached back on to the tar, it shot me straight across, and I went across the road instead of straightening up and put me into the dish drain and sort of rolled a couple of times." He added, "... aS he passed, I swung to come back on to the bitumen, but the back wheel slid out on me instead of just coming back easily and spun me round sideways, and the wheels must have grabbed on the bitumen, brought me back on the - to the other side of the road into the dish drain." Then, a little later: "Q. And then, can you recall what happened to the utility then? A. Well, it sort of went end over end like that way first and then it rolled sideways once or twice. Q. When you say 'end over end', what part A. The nose dug in and landed sort of on the back and started going the other way, I think, sort of getting flipped over and then getting tossed around sideways, and we ended up back on the wheels. Q. Do you know how many times the vehicle actually - apart from flipping over as you have described it how many times it rolled over? A. I'd say another two, like, round - I can't remember exactly because it was all just a big jumble, getting thrown around, but I'd say at least twice. Q. And the vehicle itself, you say, came to rest A. On its wheels. Q. On its wheels? A. Yeah. Q. Now, at that stage, what did you do? A. Well, when we sort of stopped, I sort of asked if everyone was all right. I got out and made sure they were, and then I went around to the passenger side where Wayne was because he was still sort of in there, sort of crunched up, and I was saying 'are you all right?' and he was sort of saying 'me ar, me arm', and I had a look at it and I just seen all the flesh hanging off the end of it, so I sort of helped him out the vehicle. Q. At that stage, was anybody else there? A. Not at that stage, no. Q. What about the Aboriginal man? A. Oh, he was in the middle, yeah. Q. Did he get hurt? A. No, got out of it quite all right. He said, 'I'm all right' and when the car pulled up, he said 'I'm all right', and when he seen how Wayne was, he said 'I'm getting out of here'. Q. When you say a car pulled up, how long after the accident was that? A. It was only a couple of minutes or a minute. He remembered seeing the appellant speaking to Constable Gordon at the Health Centre but was not close enough to hear what was being said and in any event he said there was not much words being exchanged. In cross-examination he denied he was not telling the truth in saying that he was the driver. He agreed that he lied to Constable Gordon. He maintained there had been an Aboriginal in the car but said "I can't recall his appearance at all". He could not remember what he was wearing. He could not remember the colour of the car that had caused him to swerve. He said the appellant had been drinking during the Saturday, as had he. Without being specific about how much either had drunk, he did not agree that they had been significantly affected by alcohol. He added to what he had earlier said about what the Aboriginal did after the accident. WRAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JA) He said the Aboriginal had left before the car came which took the appellant and Mr Le Guier back to Lightning Ridge: "Q. What did he do in the two minutes before this car came? A. Oh, he just had a look at the arm and all that and he said, 'Oh brother' or something similar to that, how they talk, and he said, 'I'm getting out of here anyway' because more than likely he was wanted for something, like they are usually up there, or whatever, before the police came and he said, 'I'd better get going' and took off." In cross-examination Mr Le Guier agreed that he had noticed dirt and grass and manure ingrained in the appellant's badly injured arm. He said the whole paddock "was full of cow dust and manure, whatever. It was all around the place, all over the car, whatever". Also during the cross-examination Mr Le Guier was asked about the conversation he had with the appellant in hospital when he told him what he, Mr Le Guier had told the police. He said that the appellant had replied, "You had better tell the truth". Apparently from that time on the account given by Mr Le Guier was that he had been driving. The evidence does not disclose when either the GIO or the police first became aware of the change in his story. Mr Le Guier said that after that visit to the hospital he and the appellant did not talk much about the accident; "mainly I told him what happened because he couldn't remember much about it at all". When asked how many times they had discussed it he answered "Not very often. It's not one discussion he likes discussing". What I have so far mentioned of Mr Le Guier's evidence was given before Mr Cook and Mr Dickson gave their evidence. After their evidence, leave was given to the GIO to cross-examine Mr Le Guier further, and he was then asked questions relating to blood stains in the utility. In the course of this, he said he remembered speaking to Constable Gordon at the Health Centre. He was shown Constable Gordon's notebook in which the statement he had made to the constable was recorded, in the constable's handwriting and signed by Mr Le Guier. The last part of this statement read "and when the veh stopped We climbed out from the upside down car and the black fellow took off and I haven't seen him since". Mr Le Guier said he could not remember saying that, but did not deny it. He now said he was "pretty sure" that the utility was standing on its wheels. Yet later, there were the following question and answer: "Q. Do you have any recollection after the accident hanging from the seat belt? A. After a while, I would have been hanging." The cross-examiner left the topic in that state and there was no re-examination. The final witness in the case was an expert a report from whom was tendered, by leave, by the GIO and who also gave oral evidence. This was Mr M. Griffiths, an engineer who was a manager of the Roads and Traffic Authority's Vehicle Crash Research Laboratory. In describing his qualifications he mentioned specialist knowledge of, among other things, "occupant kinematics" which he described as how a person moves around and injury mechanism, how the injury occurs, in the context of forces that are applied to motor vehicles and the impact they may have upon the human body in accidents. He had many qualifications relating to this field of knowledge. No objection was taken at the trial to the admissibility of his opinion evidence concerning the probabilities of what happened to the appellant in the accident, nor was any such point taken in the appeal. 8 UNREPORTED JUDGMENTS The opinions he stated in his evidence were based upon the various possible states of fact reasonably likely in light of the evidence, the principal ingredients being the nature and location of the appellant's injuries, the physical evidence recorded by Constable Gordon of the scene of the accident and the state of the utility as shown in the photographs taken the day after the accident. Stated in summary, his opinions were that the appellant's degloving and associated injuries did not occur from impacts within the vehicle and that for a person to suffer the injuries suffered by the appellant "they would have to be seated in the driver's position in the vehicle". In his written report, made before he saw the photographs he had said that it would not be "impossible for an occupant of the left front seat with a loosely adjusted seat belt to twist their body in such a manner so as to allow protrusion of their right arm through the left front window". This was after writing in the report that in his opinion the most likely injury mechanism was for the right arm to have been partially protruding from the right side window. The more positive statement I have above set out was made at the conclusion of his examination in chief and was the result of his having seen the photographs. Mr Griffiths was thoroughly and competently cross-examined and a number of possibilities inconsistent with his opinion were put to him. As I read this cross-examination however, subject to one matter, I do not think Mr Griffiths significantly qualified his opinion or that it was demonstrated that his opinion should not be accepted. The one qualification is that it was apparent both in Mr Griffiths' evidence in chief and in cross-examination that the very considerable forces that can be exerted upon things, including human bodies, inside a motor vehicle in the course of an accident are sometimes incalculable and cause unreconstructable events. Mr Griffiths was quite clear about the difficulties of reconstructing the dynamics of the crash in which the appellant was involved but nevertheless, after acknowledging those difficulties, remained of the opinion that the injury was caused by the weight of the utility bearing down on the appellant's arm between the ground and the driver's side of the vehicle. Master McLaughlin's reasons for dismissing the appellant's claim. The Master, in his reasons for his decision pointed out that the only direct evidence of the seating arrangements in the utility was that of the appellant and Mr Le Guier and that their testimony before him was not consistent with statements made by them shortly after the accident. He gave the details concerning the inconsistencies and went on to say he thought the story of the Aboriginal was extremely suspicious. He accepted Constable Kirwan's account of the interview with the appellant on 1 April 1986. He said the appellant's responses in cross-examination to questions concerning that interview were unsatisfactory and somewhat evasive, nor was he impressed by the appellant's demeanour or manner of giving evidence, although he thought it possible that at least to some extent his unfavourable impression may have been due to psychiatric and psychological problems the appellant was undergoing at the time he gave evidence. In assessing Mr Le Guier's evidence he said he appeared to give it frankly but had to bear in mind that Mr Le Guier was a self-confessed liar. He was suspicious of the story of the oncoming vehicle. He did not accept the evidence of the arrangement said to have been made between the appellant and Mr Le Guier for Mr Le Guier to drive the utility back from Lightning Ridge. Having considered the evidence of the appellant and Mr Le Guier, the Master did not then say that he did not accept it; rather he said that because of the criticisms he had indicated of it he thought the appellant was confronted with WRAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JA) problems in having it accepted. He then went on to consider the nature and location of the appellant's injuries and the damage to the utility. He considered these matters in conjunction with Mr Griffiths' evidence which he summarised as being to the effect that although it was not impossible for a person seated in the front passenger seat to have sustained the injury suffered by the appellant it was far more likely that the injury was sustained while the appellant was seated in the driver's seat. This seems to me to be a reasonable summary of Mr Griffiths' evidence. He then considered the evidence concerning the bloodstains. He expressed doubt as to whether "some of the discolouration shown in the photographs as appearing upon the exterior of the passenger's door was a bloodstain". Nevertheless, he said, it was possible. If it was a bloodstain, in his view it remained unexplained. He also referred to the evidence of bloodstains inside the vehicle. In the result, the Master said he accepted the expert evidence of Mr Griffiths in its entirety and that it led to the conclusion that it was more probable than not that the appellant's injuries were sustained by him in the driver's seat. He then concluded that the appellant had not satisfied him on the balance of probabilities that he was a passenger in the utility and, consequently, had not satisfied him on the balance of probabilities that the appellant's injuries resulted from the negligence of a person other than the appellant driving the motor vehicle. The submissions made for the appellant. The arguments based on bloodstains. The first matters argued for the appellant were based on ground 4 in the amended grounds of appeal filed at the commencement of the oral argument. This ground was "The Master failed to consider most of the evidence relating to the bloodstains and to give it due weight when considering the ultimate question in the case". The submission in its strongest form asserted that the evidence concerning bloodstains on the passenger's door required the conclusion that the appellant had been sitting in the passenger's seat when the accident happened. It was submitted that there was no other way of accounting for the bloodstains. Some evidence given by Mr Griffiths in cross-examination was referred to in connection with this submission. This related to what were said to be the bloodstains on the inside and the outside of the passenger door. This topic opened with the following question and answer: "Q. I take it now, having had the opportunity of looking at the photographs what is purported to be blood, that blood is shown as flowing down both the outside and inside of the door? A. Yes." After that question and answer the questions and answers continued on the footing that the photographs in fact showed bloodstains. Towards the end of his cross-examination, Mr Griffiths said that the location of the blood indicated "that someone was losing blood either by brushing in or coming into contact, had a blood loss, into those areas", adding, a little later, "at some stage". I do not agree that the evidence about bloodstains required the conclusion argued for by the appellant. It is important to be clear about the evidence which this court must consider in dealing with this submission. The Master, basing himself on a number of matters including his observation of the appellant and Mr Le Guier was not prepared to rely upon their evidence; therefore this court should not do so either, except for matters either not in dispute or made clear by other and reliable evidence. A number of matters were not established in the appellant's case. One is whether the utility was upside down or on its wheels when it came 10 UNREPORTED JUDGMENTS to rest after the accident. Mr Le Guier said one thing to Constable Gordon on the day of the accident and another in evidence. There is no other evidence from which a conclusion on this fact could be based. Another fact not established was how the appellant got out of the utility after the accident. Once again, the only direct source of information is Mr Le Guier. It is just as possible that it was by the passenger door as by the driver's door that the appellant got, or was helped, out of the utility. In view of the damage shown in the photographs as having occurred to the driver's side door, it is a distinct possibility that it was easier for the occupants of the utility to get out of it through the passenger side door no matter where they were sitting in the course of the accident. In short, this court is not in a position to conclude that any bloodstains, assuming in favour of the appellant that they were made by his blood, got on to the passenger side door as a result of the appellant's having been a passenger during the course of the accident. It is just as possible, on the scanty evidence, that the stains came from blood of the appellant which got on the passenger door after the accident, when the appellant as driver got out of the utility on the passenger side, or even after getting out of the utility and leaning on the door. I am not speculating that these things happened; I am pointing out that, in my opinion, the state of the evidence does not permit a conclusion on the probabilities that any bloodstains came from the appellant as passenger. The next submission made in regard to the bloodstains was that the Master had not given proper consideration to their importance in the appellant's case. It was argued that what the Master said on this topic in his reasons showed that he did not give consideration to all the relevant material and did not give proper weight to that material. It is true that the Master dealt with this aspect of the appellant's case briefly. His reasons however, seem to me to show that he appreciated the weight the appellant attached to the matter, but felt no need to deal with it in detail for reasons which I think were clear enough. He indicated that not all the marks in the photographs which the appellant asserted were bloodstains were necessarily so and he thought that any marks that were bloodstains remained unexplained. He did not elaborate on this, but the reasons have given in the previous paragraph seem to me to justify his statement. He mentioned evidence given by other witnesses concerning blood and bloodstains inside the vehicle. Again, he did not elaborate on this, but amongst that evidence was Constable Gordon's evidence of a bloodstain on the driver's side pillar; he had accepted Constable Gordon's evidence, and the existence of this bloodstain cut down the force of the appellant's submission. The Master's principal reason for dealing comparatively briefly with this matter seems to me to have been that he thought the circumstances concerning the damage to the driver's side and the comparative non damage to the passenger's side of the utility and the nature of the injury to the appellant's arm decisively outweighed the validity of the bloodstain submission. In my view the complaint that the Master did not consider all relevant evidence and never properly appreciated the appellant's case is not made out. I think there is sufficient in his reasons to show that he did give proper consideration to the submissions of the appellant now in question, but did not think it necessary to elaborate them more than he did, in light of the strength of the case made by the GIO based on Mr Griffiths' evidence. I see no sign of any error in the Master's reasons on this point. WRAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JA) Submissions asserting inadmissible and prejudicial material. The next major head of argument was based on ground | in the amended grounds of appeal, which read "The respondent's conduct of the case was calculated to place inadmissible and prejudicial material before the court". The submissions made under this ground fell into three categories. One dealt with questions asked which, it was submitted, were directed to eliciting prejudicial material with little or no relevance to the case; the second complained of what was said to be inadmissible evidence; and the third raised a matter of admissibility of evidence based on s20 of the Motor Vehicle (Third Party Insurance) Act 1942 as amended. A common feature of all these submissions is that they dealt with questions and answers to which no objection was taken at the trial. In regard to the first two categories, the court was taken to every alleged instance of prejudicial or inadmissible material. In every case it seems to me possible to see a basis of relevance to an issue or relevance to credit for the line of questioning embarked on. In some instances the connection between either a relevant issue or credit and the subject matter in question was rather tenuous, but in every case it seems to me the connection was clearly arguable. In nearly every instance the questioning produced nothing helping the respondent's case. When this was suggested to the appellant's counsel in argument, his response was that nevertheless the respondent's counsel might well have achieved his object of causing the Master to be unfairly prejudiced against the appellant. I do not think this is right. There is no sign of any such prejudice apparent in the transcript; nor would I expect any competent judicial officer to be affected prejudicially against a party by questions, yielding no return, of the kind here complained of. The fact that no objection was taken to the questions suggests to me that the respondent's counsel had a good idea of what the answers to the questions would be and thought his client's case might be better served by not objecting to them than by doing so. In this he may well have been right. At all events, I see nothing to suggest that the result of the trial was in any way affected by the matters complained of or that the result would have been different had none of the questions been asked. None of the Master's reasons refer to them and the grounds upon which he decided the case were quite distinct. I do not think these submissions of the appellant should be accepted. The third category of evidence relied on by the appellant was that referable to s20 of the Motor Vehicle (Third Party Insurance) Act 1942 as amended. Subs(1) of that section obliges the owner of a motor vehicle as soon as practicable after an occurrence resulting in death or bodily injury to give a notification in writing to the GIO. Subs(3) provides that the notification given under the section "shall not be subject to discovery and shall not be admissible in evidence in any proceedings" with some exceptions not here relevant. In accordance with the section the appellant gave a notification to the GIO. This notification became the subject of cross-examination at the trial and also was tendered in evidence as an exhibit. The transcript discloses no reference to s20 at any time. For the appellant it was submitted that the failure by the court to insist upon observance of s20(3) was an error of law, and although not a matter sufficient of itself to justify a new trial, was one which when taken together with the other matters of which the appellant complained showed that the appellant had not had a trial by law as he was entitled to with the result that a new trial should be ordered. 12 UNREPORTED JUDGMENTS For the respondent it was contended that subs(3) did not constitute an absolute prohibition against the reception in evidence of the notification; it was said that the subsection did no more than provide an objection to admissibility, which if taken would have to be upheld. However, if no objection was taken to the tender of the document, there was no reason why it should not be admitted. This view of the subsection may well be right, but I do not think it is necessary to decide the question for purposes of this appeal. Even if there were an absolute prohibition against admissibility of the document, the facts that it was in evidence and cross-examined upon do not seem to me to have had any significant bearing upon the outcome of the trial. I think this submission of the appellant also fails. The issue about the Aboriginal. Ground 3 of the amended grounds of appeal was "The Master failed properly to assess the evidence of the conduct of the parties in deciding whether or not there was an unknown Aboriginal in the vehicle with the appellant and Mr Le Guier". The Master spent some time in his reasons discussing the evidence about the Aboriginal. It was said that he gave undue weight to this issue. The Master's conclusion was that he gravely doubted the existence of the Aboriginal sworn to by Mr Le Guier. He made one remark which the appellant claimed showed he was mistaken in part of his understanding of the evidence. He referred to the interview between the appellant and Constable Kirwan recorded in Exhibit 5 which I have set out above. He said no reference was made in the statement then made by the appellant to the existence of the Aboriginal. Counsel for the appellant pointed out to the court that in that statement the appellant had said he thought there were about three people in the utility at the time of the accident. This it was said was or can only have been a reference to the Aboriginal as the third passenger. Contrary to the submission, it seems to me that Master McLaughlin was literally correct in what he said, and also correct in substance. The point he was making was that in the course of the conversation, the terms of which suggested the appellant was likely to have remembered that an Aboriginal was a passenger in the utility, he made no reference to an Aboriginal; a third person in the utility could have been of any age, sex or ethnic group. In my opinion the matter of the Aboriginal was of some importance in Master McLaughlin's assessment of the evidence before him, and although he may have been able to deal with that matter at less length than he did, I do not see that the way in which he dealt with it caused any lack of balance in his approach to the resolution of the case or that he made any mistake in his method of approach or his reasoning. The appellant's physical, mental and medical condition at various times. Under the second ground of the amended notice of appeal "The Master failed to take account of the appellant's physical, mental and medical condition when considering the weight to be given to the appellant's interview with Constable Kirwan" the appellant's counsel not only dealt with the Kirwan interview, but made some broader submissions to the effect that at various stages in his reasoning, the Master had failed to take into account in his assessment of the appellant, his credibility and his evidence generally, the severity of the accident and its consequences upon him and in particular the fact that his memory was likely to have been significantly affected; that is, that matters which the Master took into account in his assessment of the appellant's credibility should not have been taken into account but should rather have been ascribed to his mental state at various times. WRAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JA) This submission was supported by reference to the materials in evidence, from hospital records as well as the oral evidence to the pain suffered by the appellant for a considerable time following his injury, his anxiety about the possible amputation of his arm, his emotional distress and reaction to his situation and the heavy sedation he was given at relevant times. However, it seems to me to be simply wrong to say that the Master did not take these matters into account. In dealing with the interview with Constable Kirwan, the Master mentioned the pain and the sedation and had to balance these matters against the fact that he was impressed by Constable Kirwan as a witness, and on his account of the interview, the appellant appeared to be responding sensibly to the questions he was asked. Obviously, and correctly, the Master was of the view that the fact that the appellant was in pain and distress and under sedation at the time of the interview did not mean that no weight could be placed on what he said during it; it was quite possible that despite the difficulties under which he was labouring, the appellant told the constable precisely what he would have said to him had he not been in those difficulties. The assessment of the extent to which the Master should take notice unfavourable to the appellant of what he said in the interview was one of the tasks of assessment of evidence which is very much in the province of a first instance judge. A later passage in the Master's reasons again shows, in my opinion, an appropriate approach to his task of assessment: "T was not very favourably impressed by the demeanour of the plaintiff, or by his manner of giving evidence. However, I consider it possible that that unfavourable impression may have, at least to an extent, been due to the psychiatric and psychological problems from which the plaintiff is presently suffering. Nevertheless, I am quite satisfied that an interview between the plaintiff and Constable Kirwan took place along the lines set forth in Exhibit 5, and that the plaintiff at the time of that interview had no difficulty in answering the question, then asked of him, even if, subsequently, he no longer remembers the questions and answers of that interview." It may well be that on the material urged upon this court by the appellant it was open to the Master to have come to a more favourable view concerning the appellant than he did. I do not think the appellant's submission establishes more than that. As I have indicated it was for the Master to assess the evidence and I do not think there is any substance in the submission that in some way he erred in his method in carrying out that task or that he arrived at any conclusion with which this court could or should interfere. In what I have just said I have in mind that there was a body of evidence before the Master indicating that notwithstanding all the difficulties mentioned by his counsel, the appellant appeared to have a reasonable grip of the situation concerning the accident from the time it happened. He was conscious immediately after the accident; he and Mr Le Guier talked together in the interval between the accident and their being taken to the Health Centre at Lightning Ridge; they had the opportunity to speak together before Constable Gordon arrived at the Health Centre; the appellant was able to speak to Constable Gordon there, although under considerable difficulty which made him break off the conversation; when the police tried to interview him in hospital in Sydney soon after he arrived there, he declined to see them on the ground of his condition at that time; word had spread among his family and friends of his accident very shortly after it happened; from the reference in the interview with Constable Kirwan on | April to the accident having involved an offence under the Motor 14 UNREPORTED JUDGMENTS Traffic Act it was open to the Master to infer that some police officer had come to the conclusion that the possibility of the offence should be investigated and that this had become known to the appellant; it was also open to the Master to have in mind, in light of Mr Le Guier's evidence and those parts of the evidence of Mr Dickson and Mr Cook that I have set out above that how the accident happened was not a matter the appellant wanted to discuss. This body of evidence was relevant both to the weight which should be attached to what the appellant said at various times in light of his condition at those times and to the more general assessment the Master had to make of the appellant's credibility in his assertion that he was a passenger in and not the driver of the utility at the time of the accident. Ground 5 in the amended notice of appeal. This ground raised a very minor matter which does not call for any more comment than that it was of no assistance to the appellant in his appeal. Conclusion. In my opinion the matters put to the court for the appellant do not provide any basis for interfering with the result arrived at by the Master. In my opinion the appeal should be dismissed with costs. Meagher JA I agree with Priestley JA. Handley JA I agree with Priestley JA Appeal dismissed with costs. COUNSEL for the Appellant: B TOOMEY QC / ANDREWS Counsel for the Respondent: R C TONNER SOLICITORS for the Appellant: BAKER RYRIE RICKARDS TITMARSH Solicitors for the Respondent: GEOFFREY JOHN LEEDS