NSW INSURANCE MINISTERIAL CORPORATION v RYAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and SHELLER JJA 1 October 1993, 1 October 1993 [1993] NSWCA 201 NEGLIGENCE — motor vehicles — unidentified vehicle — blinding lights — judge accepts plaintiff- limits on appellate view NEGLIGENCE — motor vehicle — unidentified vehicle — intense lights allegedly drive plaintiff's vehicle from highway — plaintiff affected by alcohol — trial judge (Herron DCJ) accepts truthfulness of plaintiff's allegation about unidentified motor vehicle — finds verdict for plaintiff- on appeal JUDGES — reasons — duty to give — motor vehicle accident — plaintiffs vehicle allegedly driven from highway by oncoming vehicle with intense lights — trial judge fails to examine with precision versions of incident given by plaintiff- accepts as truthful his allegation of oncoming lights as the cause of his leaving the road — whether reasons inadequate JUDGES — reasons — duty to give — obligation to state grounds — held: judge did so. Held - appeal dismissed. Held: (1) Having regard to the finding of the trial judge, accepting the evidence of the plaintiff, the judgment entered was immune from appellate disturbance unless contradicted by incontrovertible evidence or otherwise palpably erroneous. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied; (2) There was no incontrovertible contrary evidence nor was the conclusion plainly erroneous, once the trial judge accepted the truthfulness of the plaintiff; (3) Judgment affirmed. Held: (1) The duty of the trial judge was to state the ground for his decision. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA); (2) That ground was the acceptance of the plaintiffs veracity; (3) The judge was not duty bound to examine all of the facts; (4) The reasons given were adequate and the judgment which followed was sustained. [1] Kirby P I will ask Meagher JA to give the first judgment. Meagher JA In between five o'clock and six o'clock in the morning on 8 June 1986 the plaintiff was travelling north on a major highway towards Hexham away from Mayfield in the Newcastle area when, according to him, he came over a slight crest and was then confronted with a bank of six very intense lights coming from a vehicle travelling in the opposite direction and they were coming straight at him. Faced with this immediate peril he took evasive action, went to the left, ran off the roadway and into a pole. The first question Herron DCJ was faced with when he dealt with this action was whether the plaintiff's account of the accident, which I have endeavoured to recount, was or was not correct. His Honour believed the plaintiff who had been 2 UNREPORTED JUDGMENTS cross-examined with some degree of care. His Honour's conclusion was that the plaintiff was an eminently honest person. Although the plaintiff was believed on that central point it is not surprising that he might nonetheless have had difficulty in pinpointing the precise point on the road where he first saw the blinding apparition of lights. In essence, as was suggested by Sheller JA in argument, any attempt to do so must be a more or less educated guess. It is, therefore, not surprising that in the course of the case, and particularly in cross-examination, the plaintiff at various stages committed himself to the lights emanating from a vehicle which stood at three or four different points. Since, in effect, he was guessing it is not surprising that he made slightly different guesses. Mr St. John QC, for the appellant made a very powerful submission to the effect that the plaintiff gave four or five entirely different stories and did so in circumstances where any acceptance of his evidence would be ridiculous. In my view this is an unduly censorious submission. The plaintiff constantly said the blazing lights which confronted him came on him suddenly and came on him from a vehicle which was travelling in the opposite direction. There were certainly slight variations as to whether the oncoming vehicle was on the road or on the median strip, or partly on one or partly on the other. On the central issues he was quite clear and quite consistent and there is nothing in the least odd about his Honour's acceptance of him as a witness of fact. His Honour, having heard the evidence found a verdict for the plaintiff. He assesses total damages at $227,196.00. He found the plaintiff twenty per cent at fault, the reasons being in connection with a seatbelt and consumption of liquor, and the ultimate judgment therefore, was for $181,757.00. There is no real dispute about the contributory negligence. It was suggested by Mr St. John QC that his Honour did not sufficiently indicate why he found what in fact he did find. By this Mr St. John QC, clearly meant his Honour did not explain at length why he accepted or rejected each of the various possible points on which the oncoming vehicle could be. His Honour, in my view, was not obliged to. Once his Honour expressed the view he was accepting or rejecting the plaintiff's story about being suddenly blinded by lights, that is all his Honour had to do. He was under no obligation to deliver a judgment of excessive length which is favoured by some other courts. In my view the appeal should be dismissed with costs. Kirby P I agree. Consistent with the instruction of the High Court in such cases as Abalos v Australian Postal Commission (1991) 171 CLR 167 at 178, I do not consider that this Court would be authorised to disturb the conclusion of Herron DCJ. That conclusion rested essentially upon his Honour's estimate that the respondent was an honest witness, that he was honestly telling the Court that he was blinded by an oncoming motor vehicle on the roadway and that this was the cause of the incident that led to his injuries and damage. The one matter that did cause me some concern was the ultimate argument which was put for the appellant that the trial judge's reasons were inadequate. The complaint was made that the trial judge in his review of the evidence had referred to the version of the accident given by the respondent in his evidence-in-chief but had not referred, or referred sufficiently, to the evidence given in cross examination, and to a concession which he there made. The authority of this Court beginning in Pettit v Dunkley (1971) 1 NSWLR 376 (CA) and expressed in Soulamezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), is to the effect a judge discharges his judicial function when he or she URJ NSW INSURANCE MINISTERIAL CORPORATION v RYAN (Sheller JA) 3 gives reasons which expound the ground for the decision arrived at. In this the ground of the decision of Herron DCJ was his conclusion that the respondent was an honest witness and that he was blinded by an oncoming motor vehicle and that was the cause of the incident which led the damage. That ground was sufficiently expounded. It was not necessary, as the law stands in this State, for the judge to proceed to eliminate the various factual possibilities that led to that ground. That ground rested ultimately upon his Honour's acceptance of the truth-telling of the respondent. Conformably with the authority to which I have already referred that ground of decision is unassailable in this Court unless contradicted by indisputable factual evidence of otherwise glaringly improbable. For the reasons Meagher JA has given, that basis for our intervention is not made out in this case. Accordingly, I agree that the appeal must be dismissed with costs. Sheller JA For the reasons given by the other members of the Court I agree that the appeal should be dismissed with costs. Kirby P: The order of the Court is that the appeal be dismissed with costs. Counsel for the Appellant: R J B St John QC with G R Petty Counsel for the Respondent: J M Foord QC with G P Edwards Solicitors for the Appellant: Stephen Mills, Solicitor for NSW Insurance Ministerial Corporation Solicitors for the Respondent: Braye Cragg