REILLY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and SHELLER JJA 23 November 1994, 23 November 1994 The appellant brought a claim under s14A (1) of the Motor Vehicles (Third Party Insurance) Act 1942 with respect to injuries-suffered as a result of a motor vehicle accident in 1985. The appellant claimed that his semi-trailer had been forced to the side of the road by an on-coming white sedan which was overtaking a truck. He subsequently lost control of his semi-trailer, which "jackknifed" several times before the trailer broke away and the prime mover came to rest in some trees. The appellant was seriously injured as a result of the incident. It was admitted that the claimant had a blood alcohol reading of.141 g/ml and had had no sleep for nearly twenty-four hours before the accident. The trial judge said that apart from a few discrepancies, there was nothing in the version given to the police after the incident that was inconsistent with the evidence given by the appellant in court. In the absence of any independent witness it became necessary closely to scrutinise the appellant's evidence to assess his credibility and to determine how what he said balanced with the objective evidence of the attendant police officer's observations of the site shortly after the incident. He gave evidence that there was no sign of any braking or skid marks and his Honour held that his observations were consistent with the semi-trailer being driven straight off the road; as such it was also consistent with the appellant suffering fatigue or the effects of alcohol or both, simply losing concentration or going to sleep at the wheel. The trial judge held that the appellant bore the onus of proof. He was not satisfied to the civil onus that the claim had been made out. Held: There was no error in the trial judge's conclusion. Taking into account all the evidence his Honour was not prepared to accept the appellant's account of what happened and it was open for him to do so. Sheller JA William James Reilly appeals from a decision of his Honour Judge Dunford QC, as he then was, given in Tamworth District Court on 30 September 1988. The proceedings were brought by the appellant pursuant to s14A of the Motor Vehicles (Third Party Insurance) Act, 1942 against the respondent in respect of injuries allegedly suffered by the appellant on Sunday, 10 February 1985 between 6 and 6.30 in the morning. His Honour gave a verdict and judgment for the respondent defendant. The appellant was born on 13 April 1938 and was aged forty-eight at the time of the incident. He claimed that his vehicle, a prime mover with a trailer attached, left the road as the result of the negligence of the driver of a white sedan the identity of which could not be established after due inquiry and search. In order to understand the nature of the matter it is necessary to say something about the events which preceded the incident. The day before, Saturday 9 February 1985, the appellant spent in Gunnedah where he lived. In the afternoon, according to his evidence, he consumed a couple of cans of beer at the local Gun Club. He said that at 8pm he left Gunnedah after a meal. A friend drove him to Willow Tree where the appellant's vehicle was parked with about twenty-three tonnes of bulk grain loaded on it, which he intended to take to Newcastle. Shortly after arriving at Willow Tree he set out in his vehicle on that journey. Near the 2 UNREPORTED JUDGMENTS top of the Murrurundi Range, following a conversation he had on his CB radio, he parked the vehicle in a parking bay. A friend drove out and picked him up and took him back to Willow Tree. He apparently went to the Willow Tree hotel with his friend and drank some beer there. According to his evidence he remained there until about midnight when a friend drove him back to his truck. He said that he stayed there until 6am on the Sunday morning when he drove, in his vehicle, down the range and through Murrurundi a distance of about three kilometres and then continued south. He passed through some hilly winding countryside which was well known to him. He apparently had driven over that road regularly several times a week for the previous ten to fifteen years. He then came to the Moorulah area, where the road travelling south comes over a rise, straightens and runs down a hill. There was, at that time, one lane of bitumen in each direction. The appellant said that he came over the rise and saw a semi-trailer coming in the opposite direction about two hundred to three hundred yards away. At this stage the appellant was travelling at a speed something over eighty kilometres an hour. As he got closer to the approaching semi-trailer a car appeared from behind it on the appellant's side of the road, overtaking the semi-trailer. He said that they were travelling uphill and that the overtaking car was a white car. He formed the view that the white car came around so quickly it did not appear to have time to brake to get in behind the other truck. The appellant said that he reacted by swerving off to the left as the other vehicles came towards him. When he swerved the prime mover had its left hand side wheel off the edge of the bitumen. The momentum caused the trailer to go further to the side. There was no collision. The other truck and white car passed by the appellant. He did not see them again. The appellant said that he then brought his vehicle back onto the road but the trailer swung away over to the left as he pulled his vehicle back to the right. The prime mover came onto the roadway. The trailer followed it and the momentum swung the trailer to the right. At that stage both the prime mover and the trailer were on the bitumen. The appellant tried to correct the swing of the trailer but it had too much momentum up and swung to the left again. Again the appellant tried to correct the swing and the trailer went to the right. The appellant said that at this point the trailer broke away from the prime mover. It is important to observe that, according to this evidence, at the point when the trailer broke away it was in a position where the rear of it was to the right of the prime mover. The appellant said that he did not recall going off the road. His next memory was somebody tending to him after his vehicle had come to rest. He said that he had swerved to avoid a collision with the oncoming vehicle at a point several hundred yards from the position at which he went off the road. His Honour, in his judgment, observed that in cross examination the appellant admitted that in addition to the two cans of beer that he had drunk at the Gun Club in Gunnedah he had also had three middies of beer at the Imperial Hotel in Gunnedah at about lunch time on the Saturday and three and a half beers at Willow Tree on Saturday night after he had returned there with his friend. The blood analysis test taken at the hospital after the incident showed a reading of.141 grams of alcohol per 100 millilitres of blood. Subsequently the appellant pleaded guilty to a charge of high range prescribed concentration of alcohol. Apparently the charge alleged an alcohol reading at.152 grams. His Honour observed also that the appellant admitted in cross examination that it was a lady friend who had driven him back to Willow Tree at midnight. The appellant and this friend had remained talking in the car in UWAEJLLY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB which she had driven him back until she left shortly before 6am on Sunday morning. His Honour observed that this all meant that the appellant had had no sleep since the time he got up at 7am on Saturday morning until the time of the incident between 6 and 6.30am on the Sunday morning, a period of about twenty-three and a half hours. In evidence the appellant denied that he felt tired or affected by fatigue. He said that he has often driven during the night apparently with little sleep and at irregular times. The appellant said that, when he came over the rise, the stretch of road to the point where the incident occurred was straight. He could see a distance of about one and a half kilometres. He also said that, to his observation, the white car had not overtaken the truck when it passed the appellant, it had only reached a point up beside the truck. When the trailer broke away the prime mover's offside front wheel was on the gravel shoulder on the wrong side of the road. The appellant thought that the trailer ended up about nine yards from the side of the road. He based this on what he had seen after he returned to the site on leaving hospital about five weeks later. The prime mover ended up in what was described as a little crop of trees. The appellant also said that he recalled the incident pretty well until the trailer separated from the prime mover because he was glad to see it go. The appellant was seriously injured as a result of the incident; indeed his Honour described his injuries as life threatening. The only other person to give oral evidence was Sgt Burridge who visited the site not long after the accident. Sgt Burridge also spoke to the appellant on the 24 April 1985. He said that the appellant then told him that he had had his first drink on the Saturday morning at about 11am when he had had two beers, that he had then gone to the Gun Club where he had three to four cans, and that at night he had gone to the Willow Tree Hotel between 9 and 11 pm during which time he had had three to four beers. The appellant, according to Sgt Burridge, told the sergeant that he went back to his truck, slept until 6am, started the vehicle and veered to avoid a car overtaking a green truck with a crate on the roof, and then lost control. His Honour said that apart from the amount of drink consumed on Saturday, the time the appellant had left for the Willow Tree Hotel and his claim he had slept between midnight and 6am, there was nothing in the version given to the police officer that was inconsistent with the evidence given by the appellant in Court. His Honour said there were no other witnesses to the incident and indeed in the circumstances alleged by the appellant there could not have been. Therefore, it became necessary closely to scrutinise the appellant's evidence to assess his credibility and to determine whether what he said was consistent with the only objective evidence in the case provided by Sgt Burridge's observations when he attended the scene shortly after the incident. His Honour said this of the appellant's evidence: "The plaintiff gave his evidence in a frank and forthright manner and answered all questions put to him without delay, evasion or apparent prevarication, except insofar as he said that he had no memory of events after his trailer separated from the prime mover but in view of his injuries this may well be true and probably is. When giving evidence of his convalescence since the accident he was very matter of fact and volunteered substantial improvement, and I could detect no trace of exaggeration in his description of his symptoms. Accordingly there is nothing in the demeanour or presentation of the plaintiff which would lead me to 4 UNREPORTED JUDGMENTS reject his evidence. There are some inconsistencies and contradictions in his evidence concerning the events prior to setting out from the top of Murrurundi range but these of themselves do not lead me to reject the general thrust of the plaintiff's evidence as to the circumstances of what happened, although I do observe that one factor on which there is inconsistency and which is of significance relates to whether he slept between midnight and 6am". Since the appellant bases its submission, to a substantial extent, on this passage from his Honour's judgment, it is to be observed that it amounts to no more than his Honour's saying that there was nothing in the appellant's demeanour or his presentation which would lead his Honour to reject his evidence and that the inconsistency and contradictions in his evidence, which have been referred to, of events prior to his setting out from the top of the Murrurundi range of themselves did not lead his Honour to reject the general thrust of his evidence about what happened. However, his Honour added that he did observe that one factor on which there was inconsistency and which was of significance related to whether he slept between midnight and 6am. Against this background his Honour said that it became necessary to consider the objective evidence, particularly that provided by Sgt Burridge. This evidence was not seriously disputed and his Honour accepted it. The question was - what inferences could be drawn from it? As I have said Sgt Burridge arrived at the scene shortly after the incident at about five or ten past seven. He said it was a fine summer morning, very sunny, the air was normal and crisp. By 6.30 it had been very full daylight. The trailer was on its side on the western side of the road and the prime mover was still upright. It is to be observed that the appellant was travelling in a southerly direction and the western side of the road was, from the point of view of a driver going south, the wrong side of the road. The cabin area of the prime mover had been completely removed by trees and was standing up on the edge of the roadway down an embankment. Sgt Burridge said that the road at that area was cut on land sloping from east to west and on the left side travelling south there was a rise. On the right the ground fell away into a gully. Consequently in that area there was very limited movement possible on the left hand side of the road. He said that in general the embankment on that side of the road was about twenty feet high. His Honour observed that it was not clear whether these observations applied further north where the incident, which the appellant alleged, with the white car had happened. Sgt Burridge carried out an inspection of the roadway which apparently extended to the north and south of the position where the vehicle appeared to have left it. He noted wheel marks of the motor vehicle had come off the incorrect side of the road, that is to say, the western side of the road at about one hundred and fifteen paces from where the trailer was resting. The wheel marks were consistently straight from where they left the bitumen to where the trailer was resting. There were no other signs of debris on the western side of the roadway. The sergeant said that his pace was a measurement of about one yard. The wheel marks showed no deviation along either line. There was no indication of any braking. They were uniform in depth as they ran across the ground. There was nothing to indicate that the driver had applied the vehicle's brakes, either on the bitumen or on the other side. As I have said the sergeant carried out an inspection north and south of where the vehicle had left the highway, and inspected both sides of the bitumen and saw nothing unusual in the gravel shoulder on the eastern side. WAEJLLY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB He drew a rough sketch plan indicating the thrust of his evidence. This sketch plan became an exhibit. His Honour said that it seemed to him that the wheel marks from the western edge of the bitumen to the semi trailer were significant. He said: "They are on the evidence over one hundred yards long and are straight and of uniform depth with no indication of any braking or deviation. Moreover the prime mover and the cabin were both some distance further south of the trailer and there were no signs on the bitumen of any braking or skid marks. It seems to me that the straight wheel tracks extending over a one hundred yards on the western edge of the bitumen must at least be those of the trailer. It is not clear whether they also show the path of the prime mover before the trailer became detached or whether they are only the path of the trailer after it became detached. If the plaintiffs version of events is correct I find it hard to understand how there could be a straight wheel path this length. If they are only the wheel marks of the trailer after it broke away I would have expected the plaintiff to have been able to steer the unattached prime mover back onto the bitumen and by braking to have stopped it within the one hundred yards of the wheel marks seen by the sergeant, so that the prime mover would have finished up north rather than south of the trailer". His Honour observed that the appellant had said that at the time the trailer broke away from the prime mover the driver's wheel was on the gravel shoulder. His Honour thought that the absence of any brake or skid marks suggested that even after the trailer broke away the appellant made no attempt to apply the brakes of the prime mover. Moreover the location of the prime mover further south than the trailer suggested that the trailer only broke away at about where it landed, but the prime mover kept going until stopped by the trees. The prime mover with the trailer still attached ran off the bitumen where indicated by the wheel marks. His Honour said: "Tf this was so and the plaintiff was trying to get it back into the roadway one would expect some curve in the wheel mark even if he was unsuccessful. To put it another way the plaintiffs version could possibly explain how the trailer finished up where it did but I fail to see that it explains how the prime mover finished up where it did." His Honour felt that on the appellant's version it was difficult to see how the prime mover, as opposed to the trailer, went over the edge and down the embankment and how it finished up further south than the trailer. If the appellant was able to pass the overtaking white car without hitting anything on the left hand side and was at the time going downhill on a straight road at a speed not greatly in excess of eighty kilometres an hour, it was difficult to see why he would not have been able to get the prime mover and trailer back onto the bitumen without losing control of the trailer. On the other hand the wheel tracks were consistent with the appellant suffering fatigue or the effects of alcohol or both, simply losing concentration or going to sleep at the wheel and running straight off the road. His Honour said he had not overlooked the fact that, although the appellant may have been tired he had only been driving for fifteen to twenty minutes that morning and that he was travelling south and would not have had the rising sun in his eyes. He said he realised he should not speculate on probable movements of motor vehicles without expert evidence and said: "Tt may be possible to reconcile the observations of Sgt Burridge with the plaintiff's evidence". 6 UNREPORTED JUDGMENTS Having made these observations his Honour's judgment continued as follows: "But the plaintiff bears the onus of proof and in the light of this objective evidence, unexplained as it is, and balancing the plaintiffs evidence against the objective facts, particularly the straight wheel marks without any signs of braking, the location of the prime mover further south than the trailer, and the additional known facts that the plaintiff had been drinking to the extent disclosed by the evidence and consistent with the blood alcohol reading, and that he had had no sleep for approximately twenty four hours, I am not satisfied to the civil onus that the plaintiffs vehicle actually left the bitumen surface in the circumstances claimed by the plaintiff and it follows that I cannot accept his version of the events immediately preceeding it leaving the road involving the alleged unidentified white vehicle. Accordingly I am not satisfied that there was such a vehicle or that it overtook a truck as alleged, or that it caused the plaintiff to lose control of his vehicle." As I have said his Honour gave verdict and judgment for the respondent defendant. In his amended notice of appeal the appellant relied on two grounds; that his Honour was in error in finding that the objective evidence was inconsistent with the plaintiff's version of how the accident occurred, and that his Honour was in error in speculating from the objective evidence and finding that such was inconsistent with the version of the appellant. The appellant's argument, which was put forcefully and persuasively by Mr Grey, started from the point in his Honour's judgment, in which he commented on the frank and forthright manner in which the appellant gave his evidence. The appellant argues that, having formed the conclusion about the appellant's evidence which is set out in the passage which I have quoted, his Honour could only have found for the defendant if he came to the firm conclusion that the appellant's account was inconsistent with the objective observations made by Sgt Burridge. Further, the appellant argued that the inferences which his Honour drew from these observations were speculative and not open on the evidence. As I have said I do not think that the remarks that his Honour made about the appellant's evidence go further than saying that he presented well in the witness box and that, as his Honour heard his evidence if it stood alone, he would not have been led to reject it on account of any matter of demeanour or because of the inconsistencies and contradictions. Quite clearly, his Honour left open the question as to whether or not, on all the evidence, he accepted the appellant's account of what happened. Furthermore, as I have observed, his Honour gave particular significance at the end of the passage that I have quoted to the inconsistency about the appellant's being asleep between midnight and 6am on the Sunday morning. It is put on behalf of the appellant that the observations made by Sgt Burridge and particularly the straight wheel marks seen running from the side of the road to the point where the trailer rested were consistent with the appellant's account. For my part I find difficulty with this argument. It will be recalled that the appellant's evidence, as set out by his Honour, was that the trailer broke away from the vehicle while the vehicle was still, but for one wheel, on the bitumen part of the road. The appellant's evidence was at that point of time, or immediately before it, the trailer had swung away to the right from the prime mover. If the trailer was in this position, that is to say, with its front end towards the left hand side of the UWAEJLLY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handley JAY road, travelling south, I find it difficult to see how, consistently with that, either it alone or the prime mover could have travelled along the track revealed by the observations of Sgt Burridge. His Honour observed that it might be possible to reconcile the observations of Sgt Burridge with the appellant's evidence. However, his Honour was satisfied that the wheel tracks were consistent with the appellant suffering fatigue or the effects of alcohol or both, simply losing concentration or going to sleep at the wheel and running straight off the road. It was acknowledged in argument on behalf of the appellant that the wheel tracks were consistent with this. The evidence was that the appellant had not slept for something over twenty-three hours and that he had consumed a substantial amount of alcohol. I see no problem at all with his Honour's finding in this respect. But, critically, his Honour observed correctly that the appellant bore the onus of proof His Honour said that, in the light of the objective evidence unexplained as it is, and balancing the appellant's evidence against the objective facts, particularly the straight wheel marks without any signs of braking, the location of the prime mover further south than the trailer and the additional known facts that the appellant had been drinking to the extent disclosed by the evidence and consistent with the blood alcohol reading, and that he had had no sleep for approximately twenty-four hours, he was not satisfied to the civil onus that the appellant's vehicle actually left the bitumen surface in the circumstances he claimed. Having carefully gone through his Honour's judgment and the material before him I, for my part, can see no error in this conclusion. His Honour, in effect, taking into account all the evidence, was not prepared to accept the appellant's account of what happened. In my opinion it was open for him to do so and no error is shown in the steps he took in arriving at that conclusion. Accordingly, in my opinion, this appeal should be dismissed with costs. Meagher JA I agree with Mr Justice Sheller although I must confess that Mr Grey initially, in a piece of very able advocacy, nearly convinced me to the contrary. Handley JA I also agree with Mr Justice Sheller. Meagher JA: The order of the Court, therefore, will be that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: LT Grey Counsel for the Respondent: GR Petty Solicitors for the Appellant: Everingham Solomons Solicitors for the Respondent: Government Insurance Office - Newcastle