COIRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and Cripps JJA 11 May 1993, 11 May 1993 [1993] NSWCA 66 MOTOR VEHICLE ACCIDENT — liability — no question of principle. The plaintiff sued the defendant for personal injuries arising out of a motor vehicle collision. The two vehicles had collided head-on travelling in opposite directions but in each case the damage was to the left hand front of the vehicle. The evidence of the two drivers was in direct conflict, there were no independent witnesses, and the objective facts did not enable any clear inferences to be drawn. The trial Judge rejected the plaintiffs evidence. On appeal: Held: The findings of fact by the trial Judge depended significantly on his assessment of the credibility of the two witnesses. The Court was not entitled to reverse those findings. Handley JA This is an appeal by a plaintiff from a decision of his Honour Judge Sinclair QC who heard proceedings in which the plaintiff sued for damages arising out of a motor vehicle accident which occurred on 19 May 1986 in Old Northern Road near Glenorie. There were no eye witnesses to the accident other than the plaintiff himself and a Mr Robinson who was the driver of the other vehicle. As his Honour said in his reasons, the primary facts were few and inconclusive. The position of the vehicles after the accident was recorded by Constable Rollo, the police officer who attended the scene who arrived before the vehicles had been moved. The trial Judge accepted that Constable Rollo's sketch, which is in evidence, accurately showed the position of the vehicles. The other objective fact which is not disputed is that although the vehicles had in substance a head-on collision, the damage to both vehicles was on the left hand front of each of them, indicating that one or other or both of the vehicles were on the wrong side of the road. Normally when two vehicles collide at or near the centre line on the road, the damage to the vehicles will be concentrated on the right hand off-side of each and the left hand off-side is likely to be less damaged or free of damage. The trial Judge said that there was a total conflict between the evidence of the two drivers. In his words, "The two accounts cannot stand together". At the time the plaintiff was travelling north in Old Northern Road, driving towards his home because, on his evidence, he had realised that he had left his lunch behind. Mr Robinson, the driver of the vehicle insured by the defendant, was travelling south. It was early in the morning and there was evidence that both cars had their headlights on. The trial Judge examined the evidence and in particular the position of the vehicles as they came to rest after collision but concluded that no firm inferences could be drawn from their position and that really the various arguments that had been addressed to him on behalf of the plaintiff and the defendant only raised matters of speculation. 2 UNREPORTED JUDGMENTS The police constable who attended the scene was unable to fix a point of impact because there was debris all over the road and there were no skid or tyre marks. His Honour ultimately preferred the account given by Mr Robinson, the defendant's insured driver, for reasons which he explained at length. He took the view that the plaintiff had gilded the lily, as he described it, in his evidence on the issue of damage and this was an important factor. He had said that both witnesses had appeared to be credible and reliable in the course of their evidence in chief but it is evident that the plaintiff's evidence did not survive cross examination as well as the evidence of Mr Robinson. Apart from the question of gilding the lily or exaggeration on the issues related to damages, there was one particularly important matter that his Honour relied upon and that was the plaintiffs evidence in relation to his chest condition. His Honour said he was quite comfortably satisfied that the plaintiff had real respiratory problems and pains in his chest before the accident and on that matter the plaintiffs evidence left much to be desired. He said that one could only come to the conclusion that either the plaintiff had a terrible memory as to his pre-accident chest condition or he was very loose with the truth. It appears that the plaintiff asserted that his chest condition after the accident was the result of the accident and of course this would not be altogether surprising in view of the fact that he suffered a number of broken ribs in the collision. However, his general practitioner, Dr Martin, was subpoenaed for his clinical notes on the plaintiff and these were tendered and covered the period from June 1978 up until the date of the accident. The trial Judge noted that the doctor's notes referred to bronchitis and pain in the plaintiff's chest over and over again and they also recorded that he was admitted to hospital in 1984 with complaints of pain in the chest. However, the plaintiff apparently had maintained in evidence after a long and detailed cross-examination based on medical reports, that he had experienced nothing but a little breathlessness before the accident. There was no dispute that he had used a ventolin puffer but he denied using other medication referred to in the medical reports which obviously related to respiratory problems. These conclusions were linked by his Honour with a disputed conversation involving the plaintiff in the ambulance while he and Mr Robinson were both being taken to hospital. Mr Robinson, who was travelling in front with the driver said that he overheard a conversation between the plaintiff and an ambulance officer, who were travelling in the rear of the ambulance, in which the plaintiff was complaining of pain in his chest and he said to the ambulance officer that at the time of the accident he had been going home to get some medication and he used the word "asthma" in that conversation. That conversation was strenuously denied by the plaintiff. However, his Honour thought that the existence of some such conversation was corroborated by the entry in the ambulance report which indicated that the plaintiff had a respiratory condition. The actual expression used is a complicated one, misspelled in the ambulance report "bronkiestesis". This is a condition, according to medical dictionaries, which involves dilation of the bronchial tubes, whereas the plaintiff's pre-accident condition, even on his own account, involved contraction of those tubes, which needed to be treated from time to time by Ventolin spray. \WRQIRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handley JAB I see no error in the use which his Honour made of this inappropriate entry in the ambulance report as some confirmation of the fact that the plaintiff told the ambulance officer that he had a respiratory condition, notwithstanding the description recorded in the report. His Honour ultimately concluded that Mr Robinson's account of the accident was more credible than that given by the plaintiff. He said that on the balance of probabilities he preferred the defendant's account and he was not satisfied that the collision happened in the way the plaintiff said that it did. It is clear that these findings against the party carrying the onus of proof depended heavily upon his Honour's earlier conclusions as to the reliability and credibility of the plaintiff's evidence as to his pre-existing chest condition, his evidence on the issue of damages and his finding that the plaintiff had, as Mr Robinson said, told the ambulance officer that he was suffering from asthma and had been going home at the time to get his Ventolin puffer. His Honour saw and heard the plaintiff give evidence in the witness box, which were advantages which the trial Judge enjoyed which this Court does not. This Court must necessarily for legal and practical reasons defer to the fact finding of the trial Judge where credibility has been taken into consideration except in unusual circumstances. Mr Bell who appears for the appellant recognised the appellant's difficulties and directed his submissions towards establishing that this was an exceptional case in which this Court could interfere because of a number of matters which he emphasised in his submissions. The first of these related to Mr Robinson's stated explanation as to why, despite braking hard, there were no skid marks left on the road by his vehicle. Mr Robinson said on that issue that there was dew on the road and his car appeared to slide, although the wheels locked. Mr Bell submitted that the learned trial Judge was not entitled to find, as he did, on the balance of probability that there was dew on the road at the time of the collision. Mr Robinson gave sworn evidence to that effect but Mr Bell drew attention to the fact that the report of the police constable stated that the road was dry and that the motor vehicle claim form submitted by Mr Robinson to his comprehensive motor vehicle insurer a few days after the collision, also stated that the road was dry. As against this, it was common ground that there was some mist around at the time although not such as to affect the visibility of the drivers. It was early in the morning, the vehicles had their headlights on, it was May, the sun had not risen, and in these circumstances it seems to me there is nothing inherently improbable or unlikely in the finding by the Judge that the road surface was indeed moist because of the presence of dew. His Honour did not find positively that the presence of the dew was the explanation for the absence of skid marks on the road left by Mr Robinson's vehicle. He said that this may be the explanation for the absence of skid marks. On any view there was only a very brief moment of time between the application of the brakes and the impact. While the police constable did state in the accident report that the road was dry, he arrived at the scene some forty minutes or so later and by that time the sun may well have been up and the road dry. In any event, it seems to me that the Judge's finding that dew was on the road surface at the time of the collision and the criticism of that finding do not constitute an objective fact of a decisive character of the kind necessary to invalidate the Judge's decision. 4 UNREPORTED JUDGMENTS Mr Bell also submitted that there had been a denial of natural justice because the learned trial Judge had failed to indicate during counsel's addresses that he was minded to find that dew was present on the road at the time of the collision and that this was a possible explanation for the absence of skid marks. Neither counsel who appeared in this Court appeared at the trial and there is no evidence as to what happened, what submissions were made and what interventions if any occurred during addresses other than what appears in his Honour's lengthy and detailed reasons for judgment. The detailed notice of appeal, which contains a number of clearly and appropriately drawn grounds of appeal, does not make any allegations of a denial of natural justice by the trial Judge. In these circumstances it seems to me that there is no evidentiary basis for Mr Bell's submission that this matter was not apparent to counsel appearing for the plaintiff at the trial, either from submissions made by counsel for the defendant or from observations made by his Honour during addresses. In the circumstances I have not been persuaded that the appellant has displaced the credibility based findings made by the learned trial Judge which led to the finding of a verdict for the defendant. In particular it seems to me that the appellant has failed to establish the existence of any decisive factor in the evidence which invalidates those findings and the matters relied upon are essentially speculative and lack the decisive quality required in order to displace findings of the nature made by the trial Judge. Moreover I would also refer to the decision in Dearman v Dearman (1908) 7 CLR 549 at 553 where Griffith CJ stated that where a trial Judge having seen and heard the witnesses comes to a conclusion against the party on whom the onus of proof lies, it is more difficult to persuade an appellate court to set aside those findings and substitute positive findings in favour of the party bearing the onus. That constitutes an important and additional obstacle, in my view, to the success of this appeal. In all the circumstances it seems to me that the trial Judge's findings have not been displaced and the appeal must fail. I propose that the appeal be dismissed with costs. Mahoney JA I agree with the judgment of Mr Justice Handley. The issue is essentially one of fact. However, Mr Bell has faced the issues which the Judge's judgment poses and has made detailed submissions in relation to them. I shall therefore add some comments of my own. Firstly, this is a case where I think the Judge was affected to some extent by what he saw and heard of the witnesses in court. Mr Bell had therefore, and I put the matter in practical terms, the task of satisfying the Court that within the principles referred to in Abalos v Australian Postal Commission (1990) 171 CLR 167 and relevant generally to the fact-finding process, the Judge's decision should be set aside. He relied essentially upon three matters: the position of the vehicles after the accident, the absence of skid marks and the fact that the defendant claimed he swerved to the right. He submitted that in each of these matters the Judge was in error in accepting the defendant's version of the accident and coming to the factual conclusion that he did. It is thus necessary to consider the extent to which the facts are such as to be inconsistent with the Judge's acceptance of the witness, so as to warrant an appellate court setting aside a Judge's decision based upon his impressions of a witness or the factual evidence. \WRQIRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JAB It is not necessary, I think, in every case, that the evidence to the contrary, the evidence of objective facts be as blunt and uncompromising as that in Voulis v Kozary (1976) 50 ALJR 59 where the appellant was able to rely upon film evidence and recorded statements. It may well be that evidence less cogent than that would be sufficient for the purpose. But in the present case I do not think that the matters on which Mr Bell sought to rely are so cogent. The position of the vehicles after the accident and the skid marks are matters from which, if support is to be gained from them, inferences are to be drawn by way of a process akin to speculation. The courts have said from time to time that care must be taken in drawing inferences from matters of this kind. In West v Government Insurance Office 148 CLR 62 the High Court, on the facts of a particular case, illustrated the need for caution in inferences of this kind. In Chambers v Jobling (1986) 7 NSWLR | in my judgment I referred to the care which in my opinion should be taken in this regard. I do not think that the inferences to be drawn from the matters to which Mr Bell referred are so compelling that the Judge's assessment of the evidence of the witnesses can be set aside or should be set aside by this Court. I do not mean by putting the matter in this way that I think the Judge was wrong. I think he was right. But I do not think a case has been made out for putting it aside, even were I not of that view. The second matter is the use which the Judge made of credit evidence affecting the plaintiff's credibility. It is proper to record I think that the Judge prepared his judgment without having the benefit of the transcript. At least that is the inference I draw from what he has said in his judgment. I therefore have examined the transcript to see if what the Judge said in relation to his assessment of the plaintiff's credit is accurately mirrored in the transcript. If I may describe them in this way, there are, I think, some rough edges. His Honour was careful to refer to the fact that he was basing himself upon his recollections and the like when he discussed what the plaintiff had said in relation to his pre-accident condition and what his condition was after the accident. Looking at the matter as a matter of substance, his Honour's general conclusion was I think right. There may have been some marginal error or inconsistency between what his Honour said and the precise terms of the transcript. I take by way of example only what the plaintiff said when he was recalled for cross examination during the trial on the third day. This is so far inconsistent with what the medical records before the court show that the Judge was entitled to have the degree of scepticism about the reliability of the plaintiff's evidence which he expressed in the judgment. He was entitled to view with scepticism the plaintiff's evidence in this regard and having done so, to allow this to affect the plaintiffs credibility in relation to his account of what happened. The Judge carefully set forth his reasoning process in the later parts of his judgment and indicated that on the balance of probabilities, for the reasons to which partly I have referred, he preferred the defendant's version of what happened. I do not think that what the Judge did was wrong. The third matter referred to was that it was suggested that the learned Judge, in basing himself upon the presence of dew on the road at the relevant time as an explanation for there being no skid marks, had in fact failed to discharge a judicial duty of exposing to counsel his judicial reasons prior to giving his judgment. I have stated the matter in those general terms. 6 UNREPORTED JUDGMENTS I do not think it is necessary for a judge who comes to a conclusion different from that which is being proposed by counsel, to put his own conclusions to counsel for examination in the sense that if he does not do so he is guilty of an error of law. It is no doubt a dictate of prudence that a Judge who feels that the factual position is different from that proposed by either side, should put the matter to counsel for their comments. But if he does not do so, I do not think he is guilty of an error of law or of acting contrary to principle. Decisions are not infrequently made by superior courts upon bases which are not the bases which have been put at the trial or by the appellant at the trial. I do not think that it is necessary for a judge who has reached such a decision to restore the matter to the list in order to explain his (provisional) view and to invite counsel to comment upon it. That has never been the law and is not now. I therefore do not think this matter, as urged by Mr Bell, is correct. In general I agree with the judgment as proposed by Mr Justice Handley. Cripps JA I agree with the reasons of Mr Justice Handley and the reasons of the Acting President. I would like to add two observations of my own: Firstly with respect to the allegation that Sinclair DCJ denied natural justice to the plaintiff in the proceedings, I do not propose to repeat what the Acting President has said on this subject. Sinclair DCJ acted upon the uncontradicted evidence of one of the parties. It appears to be suggested that there was a denial of natural justice because when he concluded that that was what he would do, he did not reassemble the Court to give the appellant the opportunity to persuade him not to accept the evidence of Mr Robinson because it conflicted with a statement in another document which was tendered in the proceedings. Had he done so and decided not to accept Mr Robinson's evidence, doubtless there would be an argument of denial of natural justice by Mr Robinson because he was not given the opportunity to explain the apparent discrepancy. So far as the other matters are concerned, I agree generally with what has fallen from my brethren. The only matter which concerned me a little at the outset was the comment in relation to the absence as a witness of the appellant's wife and Sinclair DCJ's observation that this would not have assisted the appellant. If that had been of any material importance, it would have raised a serious question. On my understanding of the evidence, the absence of the appellant's wife was not explored and, with respect to people who may have other views on this matter, I think it is better for judges to concentrate on the evidence of witnesses before them rather than to seek to derive inferences in relation to their absence. But in any event, the observation by Sinclair DCJ was, I think, peripheral to his reasoning. It was almost a throw-away line at the end of his judgment which, in my opinion, displays a careful analysis of the evidence. He concluded he could not accept the plaintiff's evidence. He was justified in coming to that conclusion. I agree that the appeal should be dismissed. MAHONEY JA: The order of the Court is that the appeal is dismissed with costs. Counsel for the Appellant: AG BELL Instructed by: TZOVARAS and Co \WRQIRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAY Counsel for the Respondent: A QUINLIVAN Instructed by: SOLICITOR FOR GOVERNMENT, INSURANCE OFFICE OF NEW SOUTH WALES