MOUNSEY v KYPRIOTIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and SHELLER JJA 21 April 1992, 4 May 1992 [1992] NSWCA 164 APPEAL — FAILURE TO DISCHARGE ONUS TO PROVE NEGLIGENCE APPEAL — motor vehicle accident — plaintiff's proceedings dismissed upon his failure to discharge onus to prove defendant negligent — plaintiff argues insufficient justification for trial judge to reject vital aspects of plaintiff's evidence — Held: no mistake or deficiency in trial judge's reasons. ORDERS Appeal dismissed with costs. Priestley JA At a quarter to seven in the morning of Monday, 23 December 1985, Mr G Mounsey was riding his motor cycle to work when he had an accident in which he suffered serious injuries. In 1986 he commenced proceedings for damages in the Common Law Division of this court against Mr T Kypriotis claiming that it was the negligence of Mr Kypriotis which had caused the accident. The trial of the proceedings was before Abadee AJ in April 1990. On 1 May 1990 the judge delivered judgment dismissing the plaintiff's claim and entering judgment, with costs, for the defendant Mr Kypriotis. Although Abadee AJ dismissed the plaintiff's case it seemed to him desirable to assess damages in the event that his views on liability were subject to appeal. The figure he assessed was $261,776.95. The plaintiff appealed. In the appeal the defendant agreed that the amount of damages assessed by the trial judge was appropriate and would not be contested. Counsel for the defendant made it clear however that in the event the defendant was found liable for the plaintiff's damages, the defendant would be contending that the plaintiff had been guilty of contributory negligence and that the amount of damages recoverable by the plaintiff should be reduced having regard to the plaintiffs share in the responsibility for the damage. In the appeal therefore, the court had first to consider whether there were any grounds for reversing the trial judge's decision on liability, and if so, whether the plaintiff had been guilty of contributory negligence. Before the trial judge, the evidence concerning liability was more limited than is usual in such cases. Only the plaintiff and one eye witness gave direct evidence of how the accident happened. The defendant did not give evidence. The trial judge accepted, and it was not disputed in the appeal, that the defendant's state of health made him incapable of giving evidence. On 2 June 1989 the Protective Commissioner had been appointed by the Court to be Receiver and Manager of the defendant's estate. The defendant was represented at the trial by the Protective Commissioner as his tutor. It appeared during the plaintiff's evidence that police had investigated the accident, but no police evidence was tendered. Although the evidence of the plaintiff and the eye witness, Mr Papoulis, showed that the accident happened in Grand Parade, Ramsgate, some distance north of the T intersection made with that road by Ramsgate Road, what was said by the 2 UNREPORTED JUDGMENTS plaintiff and Mr Papoulis about the precise spot where the accident happened was, naturally enough perhaps, more than four years after the event, not very clear and to some extent in conflict. The basis of the trial judge's decision to dismiss the plaintiff's case was that he was unable to accept the plaintiff's version of how it was that the accident happened. One step leading to this conclusion was that the trial judge, although he thought "the plaintiff has no doubt recalled as best he can", nevertheless "was left with an adverse impression as to the plaintiff's reliability both as a historian and as a witness". In setting out his summary of the evidence given by the plaintiff, the trial judge was careful to distinguish between those parts of the narrative which were what the plaintiff said had happened and those which the trial judge accepted. For example, the trial judge accepted that the plaintiff had turned into Grand Parade from Sandringham Street and then ridden north to the intersection of Ramsgate Avenue and Grand Parade, although Mr Papoulis said he had turned into Grand Parade from Ramsgate Avenue. The trial judge's summary, maintaining the distinction between what the plaintiff said had happened and what the judge accepted, then continued: The plaintiff said that as he travelled along Grand Parade and approached the intersection of Grand Parade and Ramsgate Road the lights were red and he stopped for a few seconds at the kerbside lane. He was closer to the broken line that divided his lane from the adjoining lane. He said that there was a marked up pedestrian crossing directly in front of where he stopped. At the point where the plaintiff said he stopped Grand Parade consists of two lanes going north. For vehicles proceeding south to the intersection there were two lanes plus a right hand turn lane for traffic to proceed into Ramsgate Road. The road was straight for quite a distance beyond the intersection. At the intersection the plaintiff could see quite a distance forward straight down the road. The plaintiff gave evidence that when he stopped there were no vehicles in sight, no cars travelling south and no cars behind him. I accept the evidence that there were no other cars present and particularly including none obstructing visibility to the north or north east along Grand Parade. In his evidence-in-chief the plaintiff said that he waited for the lights to change. He then went on to say: "A:... | waited for the lights to change. They turned green, I moved from the lights. I noticed two people standing on the right-hand kerb, an old gentleman and a young boy. I moved away from the lights and I was possibly through the intersection when they started running across the road. I backed off and I thought they were going to stop. When they got into the middle of the road - the young boy did but the old gentleman hesitated, and then kept on running, so I braked, took evasive action, headed left towards the gutter to get away to avoid a collision, but he kept on running and he pushed me into the gutter and the bike hit the gutter. Then I left the gutter and hit a clearway sign and the light pole.""" (The "old gentleman" was Mr Kypriotis whose age the plaintiff estimated as between sixty and sixty-five.) The trial judge then summarised what the plaintiff had said in examination-in-chief about distances between himself and the two persons he had seen from the time when he first saw them until the accident and the distance between the place of the accident and where he had been stationary at the lights. In cross-examination he gave different estimates of these distances, at one stage saying that he could not be sure of them and that he did not really know what they were. URJ MOUNSEY v KYPRIOTIS (Priestley JA) 3 The plaintiff's uncertainty about distances was one of the matters commented on by the trial judge in explaining why he thought the plaintiff's account of the accident was unreliable. A second matter concerned discrepancies between accounts given by the plaintiff to the police and some doctors of how the accident happened and the account he gave in court. The most important of these concerned what he had told the police on the afternoon of the accident. He then said two pedestrians "ran out in front of me. I swerved, I mounted the gutter and hit the pole". This differed from what he said in evidence in that in that account only one person ran in front of him and no reference was made to that person pushing him into the gutter. A third matter was that Abadee AJ accepted Mr Papoulis's evidence that he saw the accident from the eastern side of Grand Parade and that no boy or other person was crossing the road with or near the defendant. The trial judge's summary of Mr Papoulis's evidence was as follows: "He saw the defendant cross the road and there was no other person present. Before the accident he noticed the defendant move onto the road. He observed a bike coming from the Rocky Point Road direction... To the extent that the witness suggested that the bike turned from Ramsgate from the Rocky Point Road direction Avenue (sic) into Grand Parade, I do not accept such evidence, and prefer the plaintiff's account on this point. Mr Papoulis thought the plaintiff was speeding and that in the short distance from the corner to the accident that the plaintiff did not change speed. The said was walking across the road, there was no one else with him. There was no boy near or with the defendant." The trial judge said that he found it difficult to reconcile the evidence of Mr Papoulis with that of the plaintiff. He continued: "Whilst not being prepared to accept all of Mr Papoulis's evidence, nevertheless on the point as to whether or not the defendant was at any time accompanied by a boy aged 10 to 12 years before he left the reserve and during the movement across Grand Parade, I prefer his evidence to that of the plaintiffs. I was impressed with his evidence on this aspect of the matter. I have also referred to inconsistencies in the plaintiffs evidence, and the unreliability of his evidence in several respects." The judge did not make it clear whether he accepted or did not accept the part of Mr Papoulis's evidence in which he said he thought the plaintiff was speeding and did not change speed when approaching the defendant. Reading his reasons as a whole, I think it probable that he accepted that part of the evidence, but if Iam wrong in this the result would be that in regard to the question whether the plaintiff had slowed down or not, there were before the court two conflicting accounts neither of which the trial judge was persuaded to accept. The judge indicated plainly enough why he accepted Mr Papoulis's account of there being only one person crossing the road. He was not so explicit about his non acceptance of Mr Papoulis's evidence that the plaintiff came into Grand Parade from Ramsgate Road, but on rereading his reasons, it seems to me a fair inference that this view was based on the probabilities of the matter as emerging from the plaintiffs evidence; that is, that the route the plaintiff said he had taken was the more likely one, viewed objectively, and the circumstances in which the witness's attention was suddenly drawn to the plight of the defendant (where Mr Papoulis was concentrating on the defendant's position crossing the road) could easily have led him into error about where it was the plaintiff had come from immediately before his attention became focused on the defendant. 4 UNREPORTED JUDGMENTS I have earlier mentioned my understanding of the basis of Abadee AJ's decision against the plaintiff on liability. The judge's own principal statement of it was as follows: "Having found, and I do so as a matter of probability, that the defendant was not crossing the road with another person, such matter casts further doubt upon the plaintiff's version of events leading to the occurrence. An acceptance of Mr Papoulis's evidence on this point combined with the inconsistencies in the plaintiff's case, and my view as to the unreliability of the plaintiff's evidence, as to his version of events, really leads to a conclusion that the plaintiff has failed to discharge the onus of showing that the defendant was in breach of his duty of care to him. I have already mentioned the inability of the defendant to give evidence, and the lack of police evidence in the matter. I should clearly state that I am not prepared to act on the plaintiff's evidence to find the defendant was negligent. Nor do I consider that the plaintiff can support a case of negligence by further or alternatively relying upon parts of the evidence of Mr Papoulis. I have already indicated that there are parts of Mr Papoulis's evidence that I am unwilling to accent." The trial judge thus found himself in this position: there had undoubtedly been an accident, and the accident was of a kind which ordinarily would not occur without the negligence of one or both of the people concerned in it; in the absence of satisfactory evidence of what actually occurred, it could not be inferred from the fact of the accident itself that it was probable that both parties were negligent; on his view of the evidence, he had no satisfactory description of the circumstances of the accident enabling him, assuming negligence was involved on somebody's part, to be satisfied that both parties had been negligent; he therefore could not find that, on the probabilities, the plaintiff had shown the defendant was liable. The result may be thought to be an unsatisfactory one in that the court eventually dismissed the plaintiff's claim because of his failure to discharge the onus of proof and did not make the ultimate findings necessary to establish who was negligent, but this result flowed from a combination of the decision on the plaintiff's side to rely solely on the plaintiff's evidence of the accident and the judge's non acceptance of parts of his evidence. Provided that this non acceptance was properly based, it does not seem to me that the way in which the judge disposed of the case is open to criticism. It was to this last point that plaintiff's counsel directed his attention in the appeal. It was submitted that the reasons given by Abadee AJ for not accepting the vital parts of the plaintiff's evidence were insufficient to justify him in that non acceptance. This submission fell into a number of parts. First, it was said that the trial judge had been unduly critical of what the plaintiff said about distances, and of the variation in his estimates of distance, when giving his account of how it was that the accident happened. It was said that the judge had no basis for thinking the plaintiff was trying to mislead the court or doubting his creditworthiness; emphasis was laid upon the plaintiff's frankness in making it clear that he could not be definite frankness in making it clear that he could not be definite about any of the relevant distances. This submission does not seem to me to reflect accurately what the judge said on this aspect of the plaintiff's case. As I understand the judge's reasons, he was not saying that he doubted the plaintiff's truthfulness, but rather that the net result of his evidence was, when the judge took into account the variations in estimated distances and the plaintiff's admitted uncertainly about them, that it was so unreliable that the URJ MOUNSEY v KYPRIOTIS (Priestley JA) 5 judge did not feel satisfied that he could accept it. Simply reading the materials in the appeal papers does not lead me to think that the judge made any mistake in reaching this conclusion; when to this consideration there is added the admonition to intermediate appellate courts given by the High Court in Abalos v The Australian Postal Commission (1990) 171 CLR 167, I think it becomes more difficult to accept this part of the plaintiff's argument. The second main aspect of the plaintiff's criticism was that the trial judge had given more weight to the differences between what the plaintiff said in court and what he had said on previous occasions to the police and various doctors about the circumstances of the accident, than those differences really warranted. There may be a degree of force in this criticism so far as it concerns the judge's comparison of some of the things said to the doctors by the plaintiff and his evidence in court, but I do not think the criticism is justified in regard to the differences between what the plaintiff said to the police immediately after the accident and his later evidence. I have earlier mentioned the main features of this comparison, and although they are not, taken in isolation, conclusive, they certainly seem to me to be matters which the trial judge was entitled to take into account as of some significance when weighing up the reliability of the plaintiff's evidence taken all together. The third main aspect of this submission concerned the conflict between the plaintiff's evidence that there were two persons crossing the road and Mr Papoulis's evidence that there was one only, that is, the defendant. It was submitted that the judge made too much of this, that there was really little relevance, so far as the substantial facts of the accident were concerned, in the question whether one or two people had been seen by the plaintiff crossing the road immediately before the accident. There does not seem to me to be anything in this criticism of the judge's reasoning. In the course of the trial he had been trying to form a reasonably clear picture of how the accident happened. One thing seemed very likely; however the accident happened it must have happened very quickly and to the surprise of both the plaintiff and the defendant. There was no other traffic anywhere near where the accident happened and no-one else on the road apart from the defendant and if the plaintiff were accepted the person with him. For there to be a collision in those circumstances either or both of the people involved in the collision must have not been paying attention to what he or they were doing, and highly probably, only became aware of the dangerous situation that had developed at the last moment. In such circumstances an onlooker such as Mr Papoulis would not have been subject to the startlement and sudden alteration in perception likely to occur to the people on the brink of collision. Considerations of this kind relate not only to the acceptance of Mr Papoulis as against the plaintiff in regard to the other person supposedly on the road, but relevantly for the present purpose form a reasonable basis for the judge's concluding, when he bore the other matters I have already mentioned in mind, that there was a ready explanation for the plaintiff's not having accurately taken in the detail of the circumstances in which he had found himself. In aid of his submissions plaintiff's counsel referred the court to Holman v Holman (1964) 81 WN (Pt1) (NSW) 374. In that case Sugarman J, delivering the principal judgment in the Full Court discussed a number of authorities giving guidance to triers of fact on the way they should deal with uncontested evidence. These can be summarised, for present purposes, as showing that uncontradicted evidence of a witness should be accepted unless there are good reasons for its not being accepted and those reasons are stated with reasonable clarity. Leaving aside 6 UNREPORTED JUDGMENTS the fact that in many respects the evidence of the plaintiff in the present case was contradicted, it seems to me that the judge sufficiently gave acceptable reasons for his reaction to the plaintiff's evidence to have complied with the guidelines. A further submission was based on the fact that the judge had accepted a good deal of what the plaintiff said. It was suggested that it was illogical for him to go so far and then hold back from accepting his account of the accident itself. I think this submission also fails. There was sufficient material before the trial judge to make it quite clear that an accident had happened at about the time and place asserted by the plaintiff, and that he had been injured. The critical aspect of the circumstances however, concerning the plaintiff's establishing a cause of action against the defendant, lay in that last very short interval of time before the accident happened. It was in regard to what happened during this time that the trial judge felt himself unable to come to the factual conclusions necessary to establish the defendant's liability to the plaintiff. I see nothing illogical or inconsistent in the position thus reached by the judge. A final point made for the plaintiff was that in regard to some of the discrepancies between what the plaintiff said to two of the doctors about how the accident happened and his evidence in court, the judge had failed to give the plaintiff an opportunity to explain those discrepancies before he took them into account against the plaintiff in arriving at his judgment. This submission also fails, in my opinion. It seems to me to be readily apparent from the way the trial went as recorded in the appeal papers that the possibility of something being made of the discrepancies was sufficiently apparent for plaintiff's counsel to have taken the opportunity, if he wished, to re-examine the plaintiff about these matters had he thought it expedient to do so. There does not seem to me to have been any unfairness involved in what happened. In my opinion the appeal fails and should be dismissed with costs. Handley JA I agree with Mr Justice Priestley. Sheller JA I have had the benefit of reading the judgment of Priestley JA and agree with it and the orders therein proposed. Appeal dismissed with costs. Counsel for the appellant: B Coles QC/W Carney Solicitors for the appellant: Carneys Counsel for the respondent: G Woods QC/K Pierce Solicitors for the respondent: RL Whyburn and Associates