NASSAR v ANTONIOUS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and HANDLEY JJA 27 June 1994, 27 June 1994 APPEAL — motor vehicle collision — judge prefers evidence of defendant over plaintiff and his father — whether rejection of plaintiffs evidence demonstrates that judge failed to use his advantage in conducting the trial — whether conclusions glaringly improbable or contradicted by objective evidence — held: (Handley JA; Kirby P and Clarke JA concurring): No appealable error demonstrated — no matter of principle — appeal dismissed with costs. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied. ORDER Appeal dismissed with costs. Kirby P I will ask Handley JA to give the first judgment. Handley JA This is an appeal by a plaintiff from a decision of Judge Nield in the District Court who heard the plaintiff's action for damages for personal injuries arising out of a car accident which took place as long ago as 27 July 1980. The collision occurred in William Street, Earlwood and the essential question to be decided by the trial Judge was which of the vehicles was on its incorrect side of the road. If the defendant's verdict was on its incorrect side of the road then the plaintiff could be expected to recover. If, on the other hand, the defendant's vehicle was on the correct side of the road and the plaintiffs vehicle the incorrect side of the road, then the proper result would be a verdict for the defendant. There were few objective signs which assisted in the determination of this question. The police constable who attended at the scene of the accident, Constable Glynn, said that the bulk of the debris was on the side of the road that was the plaintiff's correct side of the road. There was a skid mark made by the nearside tyres on the plaintiff's vehicle running from the approximate point of the collision ending on its incorrect side of the road at the northern kerb of William Street, which indicated the path which the plaintiff's vehicle took after the collision before it came to rest. Apart from those matters the question as to liability had essentially to be decided on the oral evidence given by the plaintiff and his father, who was a passenger in the car at the time, and the defendant. His Honour preferred the evidence of the defendant to the evidence of the plaintiff and his father. It is obvious that, in arriving at this decision, the Judge took into account the manner in which the various witnesses had given their evidence particularly during cross examination. In order to disturb credibility based findings of this nature an appellant has to demonstrate either that there has been some failure in the trial process so that it can be seen that the trial Judge has failed to use, or has palpably misused, the advantage which he had in seeing and hearing the witnesses or that the Judge's decision was glaringly improbable or inconsistent with proved or objective facts. In the circumstances of the present case it cannot, in my opinion, be said that the Judge's decision was glaringly improbable or inconsistent with proved objective 2 UNREPORTED JUDGMENTS facts. Indeed Mr Black's submissions were directed to establishing that the trial Judge had failed to use, or misused, his advantage. For this purpose he relied upon a number of matters. Firstly, he submitted that the trial Judge had misunderstood the plaintiff's evidence as to the location of the crest in William Street and had improperly used this matter against the plaintiff's credit generally. The plaintiff's evidence on the matter is far from clear but in any event, I have not been persuaded that his Honour did misunderstand the true effect of the plaintiff's evidence as to the location of the crest in William Street. I have also not been persuaded that his Honour used his finding as to the geographical location of the crest adversely to the plaintiff on the general issue of credit. His Honour does not refer to his finding as to the location of the crest in this wider context and there is nothing to indicate that he did use it for this purpose. The next matter that was put is that Mr Nassar Senior was not cross-examined on liability but the Judge nevertheless rejected his evidence. An examination of the transcript indicates that Mr Nassar Senior was cross-examined on this issue and to good effect. In my opinion there is nothing in that point. The next matter that was relied upon concerned concessions allegedly made by the defendant in cross examination and re examination. The defendant's first language was not English and he made some use - the exact extent of which cannot be determined from the transcript - of the services of an interpreter. The evidence in question is evidence of the very kind which a trial Judge is in a position to evaluate. He was best able to determine whether a genuine concession was made in answer to the question of whether there was some misunderstanding or mistake. The principal concession relied upon at 164C was not followed up. If it had the effect on persons present at the trial which we have been invited to draw *om the printed page, it is strange the answer so understood should have been followed up to the advantage of the cross examiner. No attempt was made to do this and, in the circumstances, I have not been persuaded that the trial Judge fell into error in ignoring the concession said to be capable of distillation from the transcript before us. This is one of the matters where a trial Judge is in a position of special advantage in assessing the quality of the evidence of a witness. A further matter relied upon concerned the conflict between the evidence of the policeman, Constable Glynn, who stated in his accident report that there was damage to the nearside front of the defendant's vehicle, and the defendant who said there was only damage on the side front and offside of his vehicle. There is such a conflict but it was not followed up by counsel for the plaintiff in cross examination and, in all probability, for the very good reason that it would not particularly have assisted the plaintiff's case to have established the existence of damage on the nearside of the defendant's vehicle. The final matter relates to the location of the debris on the plaintiff's correct side of the road. In my judgment no firm inference can be drawn from this fact in a situation where, according to the defendant, the collision knocked the front offside of his vehicle across the centre line on to the incorrect side of the road. This is especially so where it is clear that the plaintiff's vehicle was knocked on to its nearside wheels and travelled in this position, until it collided with the gutter on its wrong side of William Street. Just what such a collision would do to debris generated from one or both of these vehicles is not clear and no firm inference can be drawn. URJ NASSAR v ANTONIOUS (Clarke JA) 3 In the circumstances the appellant has failed to bring his case within the narrower principles which alone entitle this Court to interfere with the credibility based findings of a trial judge. I would therefore propose that the appeal be dismissed with costs. KIRBY P: Conformably with the authority of the High Court of Australia, repeatedly and recently stated, and restated, in Jones v Hyde (1989) 63 ALJR 349 (HC), at 361; Abalos v Australian Postal Commission (1990) 171 CLR 167, at 178f and many other cases, I am bound to reject this appeal. None of the attacks made for the appellant came even close to disturbing the respect which this Court must pay to the advantages which the trial Judge is held by the law to have enjoyed. Nor do I consider that the reasons given by the Judge failed to conform to the requirements established by this Court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) at 268, 278, to the effect the judge must state the ground for his or her decision. The Judge stated the grounds. Essentially, they were that he preferred the version of events given in the case of the defendant to that given in the case of the plaintiff. This was very much a matter for his determination and impression. Unfortunately for the appellant, the findings of the Judge were then extremely difficult to disturb on an appeal. In the circumstances of this case, it has proved an impossible venture. I agree that the appeal must be dismissed with costs. Clarke JA For the reasons given by Handley JA the appeal must be dismissed. KIRBY P: The order of the Court is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: AJ Black Instructed by: GJ Sharah Henville and Co Counsel for the Respondent: GR Petty Instructed by: GM Meadows (Solicitor for GIO)