LAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANCE OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and POWELL JJA 23 March 1994, 9 August 1994 [1994] NSWCA 177 EVIDENCE — inference — motor vehicle collision — failure to tender evidence — in Plaintiff's case — failure to give evidence — by defendant — significance — whether explained. NEGLIGENCE — proof of — res ipsa loquitur — motor vehicle collision — application of doctrine — when plaintiff fails to establish how, as opposed to why, collision occurred. PRACTICE AND PROCEDURE — application to reopen plaintiff's case in chief — during course of addresses after close of evidence — no explanation for failure to tender evidence in chief — application refused — availability of appeal. Mahoney JA On 26 January 1986 there was a motor vehicle accident at the intersection of Cowpasture Road and Prairie Vale Road, Bossley Park. The plaintiffs sued the Government Insurance Office of New South Wales for damages. Their proceedings were tried before Gibson DCJ. His Honour dismissed the plaintiffs' claims upon the ground that the plaintiffs had not satisfied him, on a balance of probabilities, that the accident was caused by the negligence of the driver for which the defendant was responsible. The plaintiffs have appealed to this Court against his Honour's judgment. I have had the advantage of reading the judgment of Powell JA. I shall not repeat the factual material relevant to this appeal: the substance of it is referred to in his Honour's judgment and has been canvassed at length in argument. Mr McManamey, for the plaintiffs, has submitted: that Gibson DCJ erred in not finding that the accident was caused by the negligence of, as I shall describe him, the defendant's driver; and that his Honour erred in refusing, towards the end of the proceedings, to grant an adjournment as requested for the plaintiffs. (a) NEGLIGENCE: I have re-examined the evidence which was before the learned trial judge. Considering that evidence according to its terms, I am not satisfied that it establishes the negligence on which the plaintiffs relied. Having regard to the terms of it and to what I would see as the difficulties in it, I am not satisfied that the defendant's driver was guilty of the negligence alleged. I shall not refer again to the matters to which reference has been made in the judgment of Powell JA. Tam conscious that the defendant did not call evidence which in terms contested the evidence called for the plaintiffs. That is to be taken into account. I accept that it may be possible, on one reading of the evidence, to spell out of the terms of it a version or account of the accident which would suggest negligence by the defendant's driver. But in the end I do not have a Briginshaw satisfaction that the accident occurred in such a way. 2 UNREPORTED JUDGMENTS I am conscious of the advantage which the trial judge had in hearing the witnesses in evidence before him. As I have indicated, accepting the evidence given by all of the witnesses according to the terms of it, I would not be satisfied that the defendant's driver was negligent: I do not think that the plaintiffs' case was made out. His Honour did not make clear in his judgment the extent to which he was influenced by what he saw of the witnesses before him. But, on established principles, I must take into account that he may have been influenced against the plaintiffs in this regard. If he was, my conclusion would be reinforced. Ihave considered whether the plaintiffs had such language difficulties in giving evidence that I can and should come to a conclusion other than that to which I would otherwise come. I have endeavoured to make allowance for this factor as an explanation of what I see as the unconvincing nature of the evidence. But, considering the matter in this way as on a rehearing, I am not satisfied that the plaintiffs' case should be accepted. Reference was made in argument to what, as it was suggested, was the unusual manner in which the proceedings have, from their initiation, been conducted. I do not criticise those who acted or appeared for the plaintiffs: why they acted as they did and what their instructions from time to time were has not been the subject of investigation. The change in the nature of the case as propounded for the plaintiffs might ground an inference of uncertainty as to what in fact happened. But however that be, I remain of the opinion that the plaintiffs' case was not made out; at least, it does not convince me that the accident resulted from the negligence of the defendant's driver. (b) REFUSAL OF ADJOURNMENT: It was submitted for the plaintiffs that his Honour erred in not granting an adjournment of the proceeding to allow the calling of further evidence or (as it may perhaps have been) the making of further investigations. As I have said on other occasions, litigation is not to be treated as a game. The purpose of a proceeding is to determine what are the facts and how the law applies to them. The rights of a plaintiff are not to be lost because, for example, those acting for him have not done what should have been done. But the interests of the plaintiff are not the only interests which affect the justice of what is to be done. The court asked for an adjournment is entitled to take into account the legitimate desire of a defendant to have the litigation brought to an end, to know his position, and to avoid the expenditure of further costs. The court will, in my opinion, consider carefully whether the prejudice of an adjournment can and will be compensated by the making of an order for costs against the plaintiff and will bear in mind that costs ordered are not always costs recovered. The court may also take into consideration the public interest in bringing litigation to an end. This is not the case in which to consider in detail the extent to which the investigation of facts and the application of law may be carried out in a less than ideal fashion in order to save public time and money. The interest of the community in bringing litigation to an end is well established. More recently, weight has been given to the need for the effective, efficient and timeous determination of proceedings. I do not suggest that justice is to be rationed on "a user pays" principle. That would be wrong. The provision of an effective judicial system for the determination of those disputes which otherwise cannot be determined is one of the justifications for the existence, and the cost, of central government. Justice, like defence, must be provided by the State. WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANCB OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) But that does not mean that every adjournment must be granted if it will or may improve the accuracy of the fact finding or the correctness of the law to be applied. The court exercises a principled discretion in determining when the end of a proceeding has been reached. In a case such as the present, where there has been no demonstrated error of principle in the exercise of the court's discretion, it is ordinarily to be expected that a party objecting to the exercise of that discretion will indicate with appropriate clarity why injustice has resulted from the refusal of the adjournment and what was the evidence which would have been adduced had the adjournment been granted. In the present case, I do not think that those appearing for the plaintiffs were able to do that. At least, what has been urged does not establish that the discretion miscarried. In my opinion, therefore, the appeals should be dismissed with costs. Meagher JA I agree with Powell JA. Powell JA Despite the bold assertion to the contrary which was made by Mr BG McManamey, when opening the Appeal on behalf of the Appellants, the accident which is said to have occurred in the present case and which gave rise to these, and other, proceedings which were dealt with together by Gibson DCJ was not "the type of accident which judges at first instance deal with on a regular basis and regularly have no difficulty in concluding that there has been negligence by a driver in the position of... the GIO insured in this case". On the contrary, there were many aspects of the evidence which emerged at first instance, which would give a trial judge - as they have given me - considerable unease, in consequence of which, His Honour's description of the three Appellants - and of the other two Plaintiffs - as being unimpressive as witnesses, and his finding that each of them, on occasion, lied, and deliberately so, is hardly surprising. Nor, in the absence of any acceptable evidence as to the circumstances which gave rise to the accident, was His Honour's finding that neither the Appellants, nor the other Plaintiffs, had discharged the onus of establishing negligence on the part of the driver of the insured vehicle surprising. While, on one view of the matter, that short statement is sufficient to indicate why the Appeals should, in my view, be dismissed, it is perhaps as well that I set out in more detail some of the matters which have led me to that view. The accident is said to have occurred at about 9.50 pm on 26th January 1986 when a motor vehicle registered No NQD 185 which was said to have been driven by one Ha Thanh Chi ("Mr Ha") - but which was owned by the Appellant Tran Cuong Lam ("Mr Tran") - and in which each of the three Appellants was said to have been a passenger, came into collision with another motor vehicle, registered No MST 187 which was being driven by one Tieu Van Tai ("Mr VT Tieu") - who was also the owner - and in which Mr VT Tieu's brother, Tieu Than Quan ("Mr TQ Tieu") was a passenger, at or near the intersection of Cowpasture Road and Prairie Vale Road, Bossley Park - Cowpasture Road runs roughly in a North-South direction and Prairie Vale Road enters it on its Eastern side. The evidence - which has been left in a thoroughly unsatisfactory state - would tend to indicate that at some time after the accident is said to have taken place, Mr Ha and each of the three Appellants was taken by ambulance to Fairfield Hospital where X-rays and some minor treatment was given to them and from which after a period of observation each was later discharged. The evidence would also seem to suggest that the Messrs Tieu remained at the scene of the accident for an hour or more, since the evidence of Constable Mills - which evidence was left in an extraordinary vague and uninformative state - was 4 UNREPORTED JUDGMENTS to the effect that when he attended at the site at about 10.50 pm, the Messrs Tieu were still there. However, the Messrs. Tieu appear later to have been taken to Fairfield Hospital where after X rays had been taken and some minor treatment administered, they remained for a time under observation following which they were discharged. I have described the evidence of Constable Mills as having been left in an unsatisfactory, and uninformative, state and it is as well that I make that observation good. I do so in the following way: 1. it is clear that, when he came to give evidence before Gibson DCJ on 6th December 1989, Constable Mills had little, if any, independent recollection of what he observed, or what he was told, on the evening of 26th January 1986; 2. despite the fact that it appears clear enough that Constable Mills had with him his Police notebook and the original, or at least a copy, of the usual Traffic Collision Report ("Form P4"), and despite the fact that Constable Mills was permitted, without objection, to refresh his recollection from at least his Police notebook, the evidence which he then gave as to matters which one would have thought were of some significance was vague and uninformative. Thus: (a) the best that he could say as to the then location of the two motor vehicles was that "they would have been on the Western side of (Cowpasture Road), (Mr Tieu's vehicle) would have been facing North and (Mr Ha's vehicle) would have been facing probably about South-West; (b) although he claimed to have a precise note of where the accident took place and asserted that he believed that the two vehicles were within proximity of where the accident took place, the best description of where the vehicles then were - which description, it is to be noted, does not indicate how far from the intersection the vehicles then were - was that Mr Tieu's vehicle was on the left-hand side of Cowpasture Road, but whether the two vehicles were jammed together, or a couple of feet apart, he could not remember; (c) the best description which Constable Mills could give of the damage to the two vehicles was that, on Mr Ha's vehicle "it would have been the front near-side which is the left" and on Mr Tieu's vehicle "it would have been the front off-side which is the right"; (d) he was unable to say what, if any, was the extent of the damage done to the two vehicles; 4. although Constable Mills claimed to have taken a statement from Mr Ha when the latter was at Fairfield Hospital - which statement, one assumes, was recorded by Constable Mills in his Police notebook, and then signed by Mr Ha, that being the usual practice no attempt was made by Mr McManamey, who had called Constable Mills as a witness, or Mr EG Peterson, who appeared at the trial for the Messrs Tieu, to obtain from Constable Mills any oral evidence as to the conversation said to have been had with Mr Ha, or, at any time prior to the close of the evidence on the fourth hearing day, to have Constable Mills' Police notebook, and the statement, identified and tendered in evidence. The events which appear to have followed hard upon the accident are among the matters to which I have earlier referred as causing me considerable unease; first, because it is hard to avoid the conclusion that those events reflect an orchestrated course of common, and concerted, action on the part of both the Appellants and the Messrs Tieu, and, second, because, as the matters to which I will shortly refer will indicate, the various versions of the accident which both the Appellants and the Messrs Tieu were to give, at this time, appear to be in WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANCB OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) complete contrast to the case which each sought to make at the trial before Gibson DCJ, which case was that the accident was due solely to the negligent driving of Mr Ha. Lest this be thought to be merely the product of a perfervid mind, I record the following: 1. each of the Appellants and the Messrs Tieu appear, within a day, or two, of the accident to have retained the same firm of solicitors which seems at the time, to have had a branch office at Auburn - to act for them; 2. despite the facts, first, that both Messrs Hoang and the Messrs Tieu lived in the Cabramatta/Canley Vale area while Mr Tran appears to have lived at Belmore, and second, that each of them was accustomed to consult a general medical practitioner carrying on practice in, or near, the area where each lived, all five appear to have been referred by their solicitors to, and to have consulted another general medical practitioner, Dr Yusuf Bulbulia, who carried on his practice (inter alia) at Auburn where his surgery was in close proximity to the solicitors' branch office, such consultations taking place within two or three days of the accident; 3. the various versions of the accident given by the Appellants to Dr Bulbulia - that each was a passenger in a vehicle and at a T intersection the driver lost control and collided with another vehicle coming from the right - while consistent with each other, are not consistent with the case which each sought to make at the trial before Gibson DCJ; 4. the various versions of the accident given by the Messrs. Tieu to Dr Bulbulia - that he was driving - or was a passenger in - a motor vehicle and another vehicle coming from the opposite direction turned in front of him causing a collision - while consistent with each other are not consistent with the versions given by the Appellants to Dr Bulbulia nor with the case which the Messrs Tieu sought to make at the trial before Gibson DCJ; 5. despite this, each of the Appellants and the Messrs Tieu appear to have given further versions of the accident to their solicitors, which versions, on this occasion, were consistent with each other. That this was so is indicated by the fact that in each of the several Statements of Claim which were filed on behalf of the Appellants in the District Court on 20th March 1986, the relevant plaintiff's cause of action was pleaded in the following - or virtually identical terms "1. The defendant is sued pursuant to the provisions of s14(1) of the Motor Vehicles Third Party Insurance Act 1942 (as amended). 2. On the 26th January, 1986 at approximately 9.50 pm the plaintiff was a (rear) seat passenger in motor vehicle registration number NQD-185 being driven by Thanh Chi Ha of 5 Porlock Way, Canley Vale along Cowpasture Road, Bossley Park. 3. At the same time there was being driven along Prairie Vale Road, Bossley Park a certain motor vehicle the identity of which, after due search and enquiry by and on behalf of the plaintiff, cannot be established. The said motor vehicle is hereinafter referred to as 'the unidentified motor vehicle'. 4. At the intersection of Cowpasture Road and Prairie Vale Road, Bossley Park the driver of the said unidentified motor vehicle so negligently drove, managed and controlled his motor vehicle that it caused the motor vehicle being driven by Thanh Chi Ha to collide with another motor vehicle Registration No MST-187 being driven by Van Tai Tieu. 5. The said collision was caused by the negligence of the said driver of the unidentified motor vehicle. 6 UNREPORTED JUDGMENTS 6. PARTICULARS OF NEGLIGENCE (By the said driver of the unidentified motor vehicle: (i) Failing to keep any or any proper lookout. (ii) Failing to keep the said motor vehicle under any or any proper control. at page 8) (iii) Driving the said motor vehicle at a speed which was excessive in all the circumstances. (iv) Failing to apply the brakes of the said motor vehicle in time to avoid the said collision or at all. (v) Failing to exercise due and proper care. (vi) Failing so to steer or control the said motor vehicle so as to avoid the said collision. (vii) Failing to give way to the motor vehicle in which the Plaintiff was a passenger. (viii) Driving or attempting to drive across the path of the motor vehicle in which the plaintiff was a passenger when there was neither time nor space to do so. (ix) Disobeying a give way sign erected at the said intersection which at all relevant times was directing him to stop and not to enter the intersection. 7. By reason of the negligence aforesaid the plaintiff was injured and suffered and will continue to suffer loss and damage." while, in the several Statements of Claim filed on behalf of the Messrs Tieu the District Court on 25th March 1986, the relevant plaintiff's cause of action was pleaded in the following - or virtually identical - terms: "1. The defendant is sued pursuant to the provisions of s14(1) of the Motor Vehicle Third Party Insurance Act 1942 (as amended). 2. On 26th January 1986 at approximately 9.50 pm the plaintiff was driving motor vehicle registration number MST 187 along Cowpasture Road, Bossley Park. 3. At the same time there was being driven along Prairie Vale Road, Bossley Park a certain motor vehicle the identity of which, after due search and inquiry by and on behalf of the plaintiff, cannot be established. The said motor vehicle will hereinafter be referred to as the 'unidentified motor vehicle'. 4. At the intersection of Cowpasture Road and Prairie Vale Road, Bossley Park the driver of the said unidentified motor vehicle so negligently drove, managed and controlled his motor vehicle that it caused motor vehicle registered number NQD 185 being driven by Thanh Chi Ha of 5 Porlock Way, Canley Vale to collide with the motor vehicle being driven by the plaintiff. 5. The said collision was caused by the negligence of the said driver of the unidentified motor vehicle. 6. PARTICULARS OF NEGLIGENCE By the said driver of the unidentified motor vehicle: (i) Failing to keep any or any proper lookout. (ii) Failing to keep the said motor vehicle under any or any proper control. (iii) Driving the said motor vehicle at a speed which was excessive in all the circumstances. (iv) Failing to apply the brakes of the said motor vehicle in time to avoid the said collision or at all. (v) Failing to exercise due and proper care. (vi) Failing so to steer or control the said motor vehicle so as to avoid the said collision. WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANCE OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) (vii) Failing to give way to the motor vehicle in which the plaintiff was a passenger. (viii) Driving or attempting to drive across the path of the motor vehicle in which the plaintiff was a passenger when there was neither time nor space to do so. (ix) Disobeying a give way sign erected at the said intersection which at all relevant times was directing him to stop and not to enter the intersection. 7. By reason of the negligence aforesaid the plaintiff was injured and suffered and will continue to suffer loss and damage." At a later stage, so it would seem, each of the Appellants and the Messrs. Tieu were referred by their then solicitors to yet another medical practitioner, Dr JR Higginbotham. On this occasion, the various versions of the accident which were given appear to have been far more consistent with each other. Thus: (a) Mr Tran's version was that "he was the front seat passenger, wearing a seat-belt, in a car which veered to the right to avoid running into the back of another car that had just turned left into the roadway and as the car veered, it collided head-on with another vehicle". (b) Mr TL Hoang's version was that "he was the right rear passenger, wearing a seat-belt, in a car that veered to the right to avoid colliding with the back of another car and doing so collided head-on with an on-coming vehicle"; (c) Mr ND Hoang's version was that "he was the left rear passenger wearing a seat belt in a car that collided head-on with another vehicle as the car in which he was travelling had veered right to avoid colliding with the rear of another"; (d) Mr VT Tieu's version was that "he was driving his car, wearing a seat belt, on his way to visit friends when a car, coming in the opposite direction veered onto his side of the road to avoid a collision with another car that had turned left onto the roadway, and this resulted in a head-on collision". (e) Mr TQ Tieu's version was that "he was the front seat passenger wearing a seat belt in a car that was struck head-on by another vehicle coming in the opposite direction that had veered to avoid colliding with the rear of another car'. Before passing on, it is as well to observe that, had the versions of the accident which were given to the Appellants and the Messrs Tieus' then solicitors not been as they appear then to have been, it would have been difficult to see how those solicitors could properly seek to act on behalf of all five and to cause to be filed on their behalf the respective Statements of Claim in the various forms to which I have earlier referred. The instructions given to the Appellants' and the Messrs Tieus', then solicitors appear to have continued as they had earlier been at least into the year 1987, as, during that year, Particulars, or Amended Particulars, pursuant to the provisions of Pt12 R4A of the District Court Rules were filed by those solicitors on behalf of one or more of the Appellants and the Messrs Tieu. Further Amended Particulars were filed by those solicitors on behalf of at least one of the Appellants in 1988, but, whether, at that time, those solicitors continued to act for the Messrs Tieu, I am unable to say although it appears at least to have been likely. It seems that, at some time, which is not revealed by the material before the Court, the partner in the firm of solicitors which had originally acted to the Appellants and the Messrs Tieu left that firm and became a partner in the firm which acted for the Appellants at the time of the trial before Gibson DCJ and which continues to do so. Whether or not that new finn also acted for a time for the Messrs Tieu is not made clear by the materials before the Court, but, as a 8 UNREPORTED JUDGMENTS Notices of Change of Solicitor were not filed on behalf of the Messrs Tieu until some time during the trial before Gibson DCJ, it appears at least likely that this was So. Whatever may have been the position prior to the commencement of the trial before Gibson DCJ on 4th December 1989, three things appear clear, they being: 1. that it had been determined that the case which each of the Appellants, on the one hand, and the Messrs Tieu, on the other, were to seek to make out at the trial was no longer that reflected in the several Statements of Claim which had been filed some 3 1/2 years before; 2. that it had been determined that, in lieu of that case, each of the Appellants, on the one hand, and the Messrs. Tieu, on the other, would seek to make out a case that the accident was caused solely by the negligence of Mr Ha; and 3. that the Messrs Tieu had retained fresh solicitors to act on their behalf. All five actions were listed for hearing before Gibson DCJ on 4th December 1989. Quite what happened when the matters were called on for trial before Gibson DCJ is not entirely clear, for, either, the transcript record of proceedings is incomplete in that it did not record that leave was given to each of the Appellants, on the one hand, and the Messrs Tieu, the other, to file and to rely upon Amended Statements of Claim nor did it record that there was made an order that each of the actions be heard together, the evidence in the one so far as relevant to be evidence in the other; or, alternatively, there was a singular air of irregularity about the whole of the proceedings. Whatever may have been the true position, however, it seems tolerably plain that there was filed in Court in each of the actions which had been commenced on behalf of the Appellants, and each of the Appellants was allowed to proceed on, an Amended Statement of Claim in which the relevant Appellant's cause of action was pleaded in the following - or virtually identical - terms: "1. The Defendant is sued pursuant to the provisions of s14(1) of the Motor Vehicles Third Party Insurance Act 1942 (as amended). 2. On January 26, 1986 at approximately 9.50 pm the Plaintiff was a rear seat passenger in motor vehicle Registration No NQD-185 being driven by Thanh Chi Ha of 5 Porland Way, Canley Vale in a westerly direction along Prairievale Road, Bossley Park. 3. At the same time motor vehicle Registration No MST-187 was being driven by Van Tai Tieu in a northerly direction along Cowpasture Road, Bossley Park. 4. At the intersection of Cowpasture Road and Prairie Vale Road, Bossley Park the said Thanh Chi Ha so negligently drove, managed and controlled his motor vehicle that it came into violent collision with the motor vehicle being driven by Van Tai Tieu. 5. The said collision was caused by the negligence of Thanh Chi Ha. 6. PARTICULARS OF NEGLIGENCE By the Defendant: (i) Failing to keep any or any proper lookout. (ii) Failing to keep the said motor vehicle under any or any proper control (iii) Driving the said motor vehicle at a speed which was excessive in all the circumstances. (iv) Failing to apply the brakes of the aid motor vehicle in time to avoid the said collision or at all. (v) Failing to exercise due and proper care. (vi) Failing to steer or control the said motor vehicle in time to avoid the said collision. WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANCE OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) 7. As a result of the motor vehicle accident the Plaintiff has suffered and will continue to suffer loss and damage. I pause, here, to observe that the fact that the particular solicitor who had earlier acted for both the Appellants and for the Messrs Tieu, and who continued to act for the Appellants, apparently felt not the slightest of qualms about putting forward, on behalf of the Appellants, Amended Statements of Claim in which the case sought to be advanced on behalf of the Appellants departed in such a gross way from that originally sought to be advanced is another of the matters about these proceedings which has caused me considerable unease. What was the position in relation to the two actions which had been commenced on behalf of the Messrs. Tieu is far less clear, for, not only do the papers before the Court not contain any Amended Statement of Claim filed on behalf of either of them, but, the transcript record of proceedings (see Appeal Book at 170 and 171) tend to indicate that there had been no such Amended Statement of Claim filed. However, the evidence which was led on behalf of the Messrs Tieu, and as well the submissions advanced on their behalf (see, for example, Appeal Book at 225 et seq) would indicate that, whether or not such an Amended Statement of Claim was filed in each such action, Gibson DCJ permitted the trial to proceed as if there had been. Whether or not any formal Order that the five actions be heard together, the evidence in the one so far as relevant be evidence in the other, was made, it seems clear enough that the trial proceeded as if such an Order had been made, for, at the close of the evidence given in chief by Mr Tran - the first of the Appellants called to give evidence - he was cross-examined as to the circumstances of the alleged accident by Mr EG Petersen who appeared for the Messrs Tieu before being cross examined by Mr KP Rewell who appeared for the present Respondent in each of the five actions. In his Judgment, Gibson DCJ described "(t)he evidence in relation to the accident (as being) very sparse", a description with which one can but wholeheartedly agree, but to which one can add, that such little evidence as there was on that question was both confused and confusing. As I have previously indicated, the first of the Appellants called to give evidence was Mr Tran. When he came to give evidence as to the circumstances of the accident (Appeal Book at 73 et seq) Mr Tran's evidence immediately went awry, as he seemed to indicate that the accident occurred, not in Cowpasture Road, or Prairie Vale Road, but in "Bonnyrigg Road", which does not exist although there appears to be a Bonnyrigg Avenue some kilometres to the East. Unperturbed by this contretemps, however, Mr McManamey pressed on, and, with the benefit of some outrageous leading, had Mr Tran say that the vehicle that he was in approached a T-intersection and "it came out and it hit... another car coming from there, up" - the diagram (Exhibit "A" - Appeal Book at 245) which was then marked would appear to indicate that the vehicle in which Mr Tran was travelling proceeded due West into the path of the other vehicle which was travelling due North. However, in answer to a question by Mr Peterson (Appeal Book at 78) "When the motor vehicle you were in entered the intersection did it turn left or turn right or did it continue straight ahead?" Mr Tran said "Turn left" which seems rather to have spoiled the effect of the evidence in chief. Nor, although he was at least able to place the vehicle in which he was travelling as having been in Prairie Vale Road, did Mr TL Hoang do much to improve the Appellants' case. Insofar as his evidence in chief is concerned, it was limited to the following: 10 UNREPORTED JUDGMENTS "McNAMAMEY: Q. When you came to the intersection with Cowpasture Road, did something happen? LE: A. The collision occurred when we took a left turn. MCNAMAMEY: Q. If we could just take it stage by stage. The vehicle you were in reached the intersection. A: While the drivers (sic) was waiting to turn right at some rock pile and then the collision occurred. Q. Did he collide with another vehicle:? A. Yes. Q. Are you able tell us where the other vehicle came from? A. The other car came from somewhere over the road. Somewhere beyond the road. Q. Did it come down Cowpasture Road? A. It came down to the big road. Q. This is the other vehicle we're talking about? A. I beg your pardon? Q. Are we talking about the car you were in or the other vehicle? A. We turned left while the other car came down. Q. Did the other car come form your right or your left? A. From the righthand side coming down from the park beyond the road. It means that it came from opposition direction - opposite direction. Q. Mr Le can you just draw on the piece of paper the intersection as you recall it. A. This is the junction. We came down this way and we took a left turn and that car came down from this direction. Q. Can you just mark first of all with the blue pen, just put an arrow showing the direction from which your vehicle - this red pen can you mark with an arrow where the other vehicle came from. Mr Le I asked you just then if you could just mark with the red pen where the other vehicle came from. A. Since I did not drive I can't show you where the other car came from. Q. Mr Le... (not transcribable).... this diagram as being a diagram of the intersection. Can you mark with the blue pen where the vehicle in which you were travelling, the course that it travelled the vehicle you were travelling in and no other vehicle. Thank you, just put a little arrow on it to show the direction in which you were travelling. Now with this red pen can you mark on that diagram where the other vehicle was travelling leading up to the collision, the other vehicle and no other vehicle." The diagram (Exhibit "F" - Appeal Book at 255) seems to indicate that the vehicle in Cowpasture Road was travelling North and then veered to its right as the vehicle in which Mr TL Hoang was travelling turned left from Prairie Vale Road into Cowpasture Road. However, worse to come, for, when he was cross examined by Mr Rewell, Mr TL Hoang gave the following evidence (Appeal Book at 117): "Q. You've told us about the accident and have drawn a diagram illustrating two motor vehicles? A. Yes. Q. Were there any other motor vehicles approaching the intersection at which the accident occurred at the time of the accident? A. At the impact I was petrified so I could not notice anything. Q. Did you notice any other vehicle approaching the intersection at the time of the accident, apart from the two which you have illustrated on your diagram? A. I was unconscious at the time I did not know anything. Q. You weren't unconscious before the accident were you? A. I did not see anything - any car before the accident happened. WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANGE OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) Q. Do you say that you had no knowledge at any time of the involvement of a third motor vehicle in this accident? A. I want to say that before the accident I did not see anything and after the accident I was unconscious." Nor did Mr ND Hoang, when he came to give evidence, improve the situation. His evidence in chief as to the circumstances surrounding the accident was in full as follows: "Q. On 26 January 1986 you were a passenger in a motor vehicle? Yes. Q. Whereabouts in the vehicle were you seated? In the rear seat on the left side. Q. That's behind the front passenger seat? A. Yes. Q. Are you able to tell us who was driving the motor vehicle? A. Mr Hanh. Q. Can you tell us which street you were driving along? A. I was a passenger and could not tell the name of the street. Q. Were you driving in the Bossley Park area? A. I did not know until later on when I was told by Mr Hanh. Q. As you were driving along the road did the car come to an intersection? A. Yes. Q. Can you tell us whether it was a T-intersection or a cross-intersection? A. It's a T junction. Q. I just show you a diagram you can take to be a diagram of the T-intersection. Can you mark with this blue pen where abouts into this intersection was the vehicle in which you were travelling? When he vehicle entered the intersection, did something happen? A. I was talking to my friend next to me and the driver took a turn and then I heard a bang. Q. Did your car come into collision with another car? A. I did hear a bang yes. Q. What's the next thing you remember? A. I did not know anything until five minutes later. Q. And five minutes later where were you? In the car. Q. Was the car still moving or was it stationary? A. After the collision the car was stationary. Q. Did you see what your car had collided with? A. When I stepped out of my car I saw it was collided with another car. Q. Can you mark with a red pen on this map where abbots the other car was when you saw it? " (The "map" (Exhibit "M" - Appeal Book 270) which was no more than a freehand sketch depicting a T-intersection showed no more than two arrows, one in each arm of the T.) As if this were not confusing enough, in the course of his cross-examination, after having asserted that the information as to the accident which he had provided to his solicitors in January 1986 was true, Mr ND Hoang gave the following further evidence: "Q. As your vehicle approached the intersection at which the collision occurred, did you notice any third vehicle approaching the intersection? A. I was talking to a friend next to me so I did know a thing until I heard a bang. Q. So is it the position then that you did not notice a third vehicle at the intersection at any time: A. Yes. Q. And when you first saw Dr. Higginbotham in July 1986 did you provide to that doctor information as to how the accident happened: Q. I forgot, I could not remember it was so long ago." (It is to be remembered, of course, that the original Statement of Claim and the version given to Dr Higginbotham had the motor vehicle which was being driven by Mr Ha travelling south in Cowpasture Road and then swerving right - into the 12 UNREPORTED JUDGMENTS path of the vehicle being driven by Mr VT Tieu - to avoid a collision with "the unidentified motor vehicle" which emerged suddenly from Prairie Vale Road into the path of the motor vehicle being driven by Mr Ha.) The second of the two passages from the evidence of Mr ND Hoang which I have set out above concluded Mr ND Hoang's evidence - this was early in the morning on the third day of the trial. Mr ND Hoang's evidence was followed by that of Constable Mills which evidence, as will be apparent from what I have earlier recorded, was comparatively short. Then, after Dr O' Donovan - who had examined Mr ND Hoang on behalf of the Respondent had been interposed, and his evidence taken and after he had tendered a number of medical reports and accounts, Mr McManamey closed "the (Appellants') case" - this was all prior to the mid- morning adjournment on the third day of the trial. The first of the Messrs Tieu called to give evidence was Mr VT Tieu. In his evidence in chief Mr VT Tieu gave the following evidence as to the circumstances of the accident: "Q. And as you approached that intersection Mr Tieu, were you turning right or were you proceeding straight ahead? A. I drove straight ahead. Q. Now as you approached the intersection Mr Tieu did you see any other cars in Cowpasture Road, the road you were in? A. Yes. Q. And were these cars behind you or in front of your? A. From my opposite direction. Q. As you approached the intersection did you observe any cars in the road that approached on your right? A. Yes. Q. And how many cars did you see in the road on the right? A. One running opposite to me and one from the inner road running out. Q. As you approached Prairie Vale Road could you see cars in Prairie Vale Road? A. Yes. Q. How many? A. Well one. Q. And was this car travelling towards Cowpasture Road or away from Cowpasture Road? A. It drove towards Cowpasture Road. Q. Could you see any indicators of (sic) this other car? A. I did not notice. Q. How far away from the intersection of Cowpasture Road and Prairie Vale Road were you when you saw this other car? A. I was approaching but I could not remember how far I was. Q. Now when you saw this other car what did you do? A. Which car are you referring to? Q. The car approaching from Prairie Vale Road? A. As | was approaching that car drove straight and I heard the noise of the contact - of the impact. Q. What cars were involved in the impact? A. The cars that came out from Prairie Vale Road. Q. And what was your car doing at the time of the impact? A. My car was stationary then. Q. Were you turning or driving straight ahead? A. My car was stationary after that. Q. What was your car doing before the impact? A. On the straight road. Q. What was your car doing, was it moving or standing still? A. Was moving. Q. Now at the time of the impact on what side of Cowpasture Road was your car? A. On the left-hand side. WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANGBS OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) Q. You said earlier that you saw a car coming in the opposite direction, where was it at the time of the impact? A. On the right-had side. Q. In what direction was it travelling? A. From my opposite direction. Q. How far away from your car was it at the time of the impact? A. Very near. Q. Now was it near to you in front of you or near to you behind of you? A. Near the rear of the car that hit me. Q. How far was it from the rear of the car that hit you? As I did not notice how far it was but it was - just came to the behind of the car that hit me. Q. And so Mr Tieu how many cars actually collided together. A. Two. Q. And when you say two cars you mean your car plus that came from Prairie Vale Road? A. Yes. Q. And the car that you had also seen coming in the opposite direction in Cowpasture Road, did that car hit you? A. No." In the course of his cross examination, Mr VT Tieu gave the following evidence: REWELL: Q. When you went to see your previous solicitors Henry Davis York for the first time, did you go by yourself or with somebody else? A. It was with my brother. Q. And when you provided information to Messrs Henry Davis York, did you do so alone or with your brother? A. Alone. Q. And did you provide information to Messrs Henry Davis York as to the way in which the accident occurred? A. Yes. Q. Now did you observe a third motor vehicle apart from your vehicle and the one which collided with you approaching the intersection at that time of this accident? A. Yes. Q. Where was the third motor vehicle? A. As I have told you before, that car was behind the car that hit me. Q. So the third motor vehicle that you saw was behind the other vehicle. A. Yes. Q. Did the third motor vehicle have anything to do with the occurrence of the collision? A. No." (It is to be recalled that in the Statement of Claim filed on behalf of Mr VT Tieu in March 1986, it was asserted that it was the motor vehicle driving south in Cowpasture Road which had collided with Mr VT Tieu's motor vehicle when it took evasive action because of the sudden emergence of the vehicle from Prairie Vale Road.) Whatever assistance the evidence of Mr VT Tieu may have provided to the case of the various plaintiffs appears rapidly to be dissipated when Mr TQ Tieu came to give evidence, for, in his evidence in chief, after having his attention directed to the night in question, he gave the following evidence: "Q. When something happened to your brother's car, what do you say happened? A. I only know that there was a collision. Q. Did you see or hear the collision? A. I saw the collision and I heard the collision. Q. At the time of the collision whereabouts was your brother's car on the road, the left hand side or the right hand side? A. As far as I can remember my brother's car was on the right hand side. Q. When the collision occurred were you looking at the road or looking outside the car? A. I did not notice. Q. Did you see what caused the collision? A. No. 14 UNREPORTED JUDGMENTS Q. Had you seen any other cars immediately before the collision? A. I only saw the lights of the car. Q. You saw the lights of what car? A. I don't know. I saw many lights, many cars. Q. When the collision occurred what happened to you? A. I did not know anything at the impact. Q. What happened to your brother's car immediately after the impact? A. I don't know. Q. Did you see what part of your brother's car was struck in the collision? A. No. Q. Did you remain in the car or did you leave the car? A. I do not remember clearly. Q. What is the next thing that you remember after the collision? A. I heard noises. Q. Do you remember anything else after the collision. A. No." Although Mr TQ Tieu was cross examined at considerable length as to the nature and extent of the injuries which he claimed to have suffered and the disabilities from which he claimed still to suffer - the transcript of the cross-examination is replete with instances in which, whenever pressed on some matter where his evidence was inconsistent with other evidence which he had given, Mr QT Tieu would retreat to the use of phrases such as "I don't recall" and "T don't remember", a fact of which Gibson DCJ made note during the course of counsel's submissions - it is hardly surprising that Mr TQ Tieu was not cross examined on this aspect of the evidence. Towards the end of the third day of the trial, Mr Petersen closed the case for the Messrs Tieu, subject only to an application which might be made on the following morning for the cross-examination of Mr TQ Tieu to be re-opened if some documents which had earlier been subpoenaed, but which had not arrived at the Court had by then arrived. On the following morning Mr TQ Tieu was recalled and further cross-examined. After tendering a number of documents on behalf of the Respondent, Mr Rewell sought a short adjournment, as certain witnesses, who were to attend Court to give evidence on behalf of the Respondent, had not then arrived. After Gibson DCJ had granted a short adjournment to enable Mr Rewell to make enquiries - which, in the event were unsuccessful - Mr Rewell, on the resumption, sought a further adjournment, but, in the circumstances, His Honour declined to grant a further adjournment. Mr Rewell then closed the case for the Respondents. There being no evidence tendered in reply on behalf of either the Appellants or the Messrs Tieu, His Honour then called on Mr Rewell to address. After Mr Rewell had submitted that there was no evidence of negligence 011 the part of Mr Ha, Gibson DCJ then called first upon Mr McManamey and then Mr Petersen to address him on that issue. In the course of the debate which then followed - as far as one can judge, for the better part of the morning - His Honour made clear his views, first, that it was for the Appellants and the Messrs. Tieu to establish negligence on the part of Mr Ha; second, that, even if the evidence which the Appellants and the Messrs. Tieu were to be accepted, there was no evidence of negligence; third, that, in any event, each of the Appellants and the Messrs Tieu was an unacceptable witness; fourth, that the evidence of Constable Mills had been left in such a state that it WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANGB OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) was quite impossible to know, or even to infer, how the accident might have happened; and, fifth, that the fact that no attempt had been made to obtain from Constable Mills evidence as to his conversation with Mr Ha, left it open for him to infer that that conversation would have been of no assistance to the Appellants and the Messrs Tieu. Faced with these observations on the part of His Honour, Mr McManamey sought first to persuade His Honour that the case was one of res ipsa loquitur, and, when His Honour seemed to indicate that the state in which the evidence had been left did not permit the application of that doctrine, sought leave to reopen his case in chief "to tender a document" - he did not at that stage indicate what was the document, nor did he proffer any explanation as to why the document had not earlier been tendered. Not surprisingly His Honour rejected that application (Appeal Book at 234) and the debate continued. Towards the end of the debate (Appeal Book at 240) Mr McManamey renewed his application for leave to reopen. At the time when he made that application he did not indicate what was the evidence which he sought to tender - although he later indicated that what he would seek to do was to tender the Traffic Accident Report - nor did he then, or later, offer any explanation as to why it was that that report had not been tendered in chief. In the circumstances, His Honour once more declined to give the leave sought. At the conclusion of the debate, His Honour delivered a short Judgment at the end of which he directed that there would be a verdict for the Respondent in each case. In the course of his Judgment, His Honour, having indicated his view as to the credibility of each of the Appellants and the Messrs. Tieu continued: "The Plaintiffs bear the onus of satisfying me that the accident took place in a manner in which there was negligence on the part of the driver of the insured vehicle, Ha. They bear that onus of course only on the balance of probabilities, it being the civil onus but I have to be satisfied that there is acceptable evidence before me which would enable me to so find. I am not satisfied on the evidence that the Plaintiffs have established before me that this accident took place on the balance of probabilities because of the negligence of the driver of the vehicle driven by the Defendant's insured (sic). There are in my view explanations open on the evidence equally consistent with no negligence on his part and that being so I take the view that the Plaintiff (sic) has not satisfied me as he is (sic) required to do on the evidence of the negligence of the insured driver of the motor vehicle and in each case there will be a verdict for the Defendant. Being dissatisfied with this result, each of the Appellants - but not the Messrs Tieu - duly filed a Notice of Appeal, the grounds of Appeal, in each case, including the following: "1. His Honour erred when he failed to find that the accident happened in circumstances where a collision would not normally occur in the absence of negligence by the Defendant's insured driver. 2. His Honour erred when he found that on the evidence there were explanations available for the cause of the accident that were consistent with no negligence by the Defendant's insured driver. 3. His Honour erred when he failed to properly consider the evidence of Constable Mills concerning where the collision occurred. 4. His Honour erred when he did not accept the evidence of any of the Plaintiff's witnesses when there was no evidence called by the Defendant. 16 UNREPORTED JUDGMENTS 5. His Honour erred when he failed to give proper consideration to the evidence of Constable Mills concerning the damage to the vehicles. 6. His Honour's finding was contrary to the evidence and against the weight of the evidence. 7. His Honour erred when he did not allow the Plaintiff to reopen his case to tender further evidence." Both in his written submissions, and in his submissions on the hearing of the Appeal, Mr McManamey dealt with grounds | to 6 together and ground 7 separately. As I understand it, the basis upon which Mr McManamey dealt with grounds 1 to 6 together was that, so he submitted, the totality of the evidence was to the effect that Mr Ha drove the motor vehicle in which the Appellants were passengers along Prairie Vale Road until he arrived at the intersection with Cowpasture Road, at which stage he commenced to make a left hand turn. Mr McManamey's submissions then proceeded upon the basis that, after Mr Ha commenced to make his left hand turn, and while he was in the process of making that turn, he came into collision with the motor vehicle which was driven by Mr Tieu and which was on his left. These undisputed facts, so Mr McManamey submitted, gave rise to two grounds upon which Gibson DCJ could, and should, have found negligence in Mr Ha they being: 1. that, in so doing, Mr Ha had failed to comply with the provisions of Reg67(1)(b) of the Motor Traffic Regulations which sub regulation provides: "67. (1) Where 2 motor vehicles or a motor vehicle and another vehicle are approaching each other at an intersection and the vehicles would collide if they both continued: (a) except as provided in para(b), the driver of the vehicle which has the other vehicle on his right hand side shall lessen the speed of or stop his vehicle and allow the other vehicle to pass in front of him; or (b) where the driver of one of the vehicles is approaching the other vehicle from a terminating street, that driver shall lessen the speed of or stop his vehicle and allow the other vehicle to pass in front of him." 2. alternatively, as, so it was submitted, the circumstances of the accident were such that the collision would not have occurred but for the negligence of Mr Ha, the Court ought to apply the doctrine of "res ipsa loquitur". With respect, it seems to me that there are several answers to these submissions. The first, and, in fact, fatal, answer to these submissions is that, as His Honour did not believe any of the Appellants and the Messrs. Tieu, there is no version of what occurred - and, of course, several had been given in evidence - which could be said to have been accepted by His Honour. That His Honour was not prepared to accept any of the Appellants or the Messrs Tieu as a witness of truth is hardly surprising, for, apart from the various matters to which His Honour referred in the course of his Judgment, the undoubted fact was that each of the Appellants and the Messrs Tieu had earlier given at least one, if not two versions of the accident, which version, or versions, varied dramatically from the versions which they sought to give in evidence at the trial, notwithstanding which no attempt was made on behalf of the Appellants or the Messrs Tieu to explain how it was that the accident, which had originally been said to have been caused by the negligence of the driver of an unidentified motor vehicle coming from Prairie Vale Road and forcing the vehicle, driven by Mr Ha, which was proceeding South in Cowpasture Road to veer into the path of Mr Tieu's vehicle, had WAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANGE OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) suddenly changed into a case in which there were only two vehicles, the one driven by Mr Ha in Prairie Vale Road and the one driven by Mr Tieu in Cowpasture Road. The second answer to these submissions, as it seems to me, is that, even if the version propounded at the trial were correct, the matter would not have been covered by the provisions of Reg67(1)(b) of the Motor Traffic Regulations, for, in the event supposed, in which Mr Ha was turning left rather than proceeding to the West, there was no obligation cast upon him to lessen the speed of, or to stop, the vehicle which he was driving in order to allow Mr Tieu's vehicle to pass in front of him. The third answer, as it seems to me, is that, even if - which may be doubted - the doctrine of res ipsa loquitur can, without more, apply to a collision between two motor vehicles, in the absence of some finding by His Honour as to what was the nature of the accident, which type of accident, in the absence of any explanation of how it occurred, might be explained by the application of res ipsa loquitur, there is nothing in the present case upon which the doctrine can be permitted to operate. Nor it can possibly be said that Gibson DCJ erred when he did not accept the evidence of the Appellants, or that his findings were contrary to the evidence and against the weight of the evidence. His Honour's views as to the credibility of the Appellants and of the Messrs Tieu were pre-eminently questions for him and, in the absence of some demonstration that he has failed to take advantage of his position as the trial judge, his views in this regard must be regarded as inviolate. Far from it being shown that His Honour failed to take advantage of his position as a trial judge it is, in my view, clear that there was ample material to justify him taking the view which he took. I turn then, albeit but briefly, to the seventh ground of appeal. The question whether or not a plaintiff ought to be given leave to re-open his evidence in chief is pre-eminently one for the discretion of the trial judge and his decision is subject to review only in very limited circumstances. Despite Mr McManamey's valiant endeavours to persuade us that, when he declined to grant leave to re-open, Gibson DCJ fell into error, I, for one, remain to be persuaded that this was so; particularly is this so since Mr McManamey seems to proceed upon the basis that it was for His Honour to justify his refusal, as if the Appellants had a right to re-open. But the simple facts were that what were before His Honour were five actions for damages, in which actions the Plaintiffs' case had changed dramatically since the time when they had commenced, despite which fact no attempt to explain that change had been given; such evidence as to the nature of the accident which was given was, to say the least, sparse in the extreme; the evidence as to the injuries in respect of which the Plaintiffs sought to recover damages was far from satisfactory; the amounts which would have been involved in any verdict would have been unlikely to be great; the case for the Appellants - in which case Constable Mills had been called to give evidence, but had not been asked a word about his conversation with Mr Ha - had been closed before the end of the second day of hearing; the application was not made until, during the course of counsel's submissions after all the evidence had been concluded, His Honour expressed the view that the Appellants' evidence was totally unsatisfactory; no explanation was proffered to His Honour as to why it was Constable Mills that had not been asked as to his conversation with Mr Ha, or as to why Constable Mills' Police notebook 18 UNREPORTED JUDGMENTS or the Traffic Report had not been tendered in evidence; and although a copy of part of the Traffic Accident Report was handed in during the course of the argument on the Appeal, that part which was handed in does not contain any reference to a statement by Mr Ha, and no attempt has been made, even now, to let the Court know what it was that Mr Ha was said to have said. It is no answer to all this to submit, as Mr McManamey has submitted, that Mr Rewell had not sought to tender any evidence as to liability during the Defendant's case at the hearing, as to this, all that I would say is that, given the totally unsatisfactory state in which the evidence as to liability had been left, it is hardly surprising that Mr Rewell did not seek to tender any evidence on that issue (see, for example, Maharis v Malagevac!. It does not, however, follow that, if Constable Mills had given oral evidence as to any conversation with Mr Ha, or if Constable Mills' Police notebook or the Traffic Report had been tendered, Mr Rewell would not have taken another course. Far from being persuaded that Gibson DCJ fell into error in this respect, I am satisfied that the course which he took in the circumstances was a perfectly proper one. The Orders which I would propose are as follows: 1. In each case ORDER that the Appeal be dismissed. 2. In each case ORDER that the Appellant pay the Respondent's costs of the Appeal. Counsel for the Appellant: BG McManamey Instructed by: Michell Sillar McPhee Meyer Counsel for the Respondent: GH Shore Instructed by: GM Meadows, Solicitor for Government, Insurance Office of New South Wales 1. 27th April 1994 Court of Appeal (unreported)