HOFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MAHONEY AP and ROLFE AJA 17 August 1995, 21 August 1995 Evidence: The driver of a motor vehicle involved in an accident held to be a person "interested" within the meaning of s14B(3) such that his statement should have been rejected: Costa v Cos a (1967) 87 WN 20; Walters v Government Insurance Office of New South Wales (1968) 88 WN 622; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398; Brown v Petranker (1991) 22 NSWLR 717; Tobias v Allen (No 2) [1957] VR 221; Accident Insurance Mutual Holdings Limited v McFadden (1993) 31 NSWLR 412. New Trial: Trial Judge had regard to material not in evidence: new trial required: Stead v State Government Insurance Commission (1986) 161 CLR 141 and G N Simmonds v MC Spooner (Court of Appeal 28 March 1995 - unreported) applied. Words and Phrases: A "person interested" Gleeson CJ I have had the benefit of reading in draft form the judgment of Rolfe AJA. I am in agreement with that judgment, and would add only some brief observations upon the issue as to whether Mr Murphy was a person interested when he made the statement received in evidence under s14B of the Evidence Act. Whatever may have been his precise state of knowledge as to the pending litigation, or the law concerning civil liability for motor accidents, Mr Murphy must have known that his statement was being taken in connection with, and for the purpose of the resolution of, an issue as to who was to blame for the accident. The question whether Mr Murphy was at fault was one in which he was interested. He was clearly not impartial. The fact that he had no financial interest in the outcome of the pending legislation does not alter the case. When a question arises as to whether somebody is to blame for a motor accident, questions of possible civil or criminal liability are not the only matters that are capable of giving that person an interest in the manner in which the question is decided. Mahoney AP I agree with the judgment of Rolfe AJA. Rolfe AJA INTRODUCTION Shortly before 8 pm on 10 October 1986 the plaintiff/appellant, ("the appellant'), was riding his motor cycle in a northerly direction in Kensington Road, Kensington. It is a sealed two way thoroughfare with an uphill gradient rising from its intersection with Todman Avenue running from south to north. A diagram of the locality appears at AB119. The defendant's insured driver, Mr Patrick Joseph Murphy, ("Mr Murphy'), was driving a Ford Falcon Sedan in the same direction in Kensington Road ahead of the plaintiff, Mr Murphy having made a right hand turn from Todman Avenue into Kensington Road in front of the appellant. A number of cars were parked on each side of Kensington Road. Mr Murphy was approaching a laneway stated to be "unmarked laneway" on the diagram, which was on his western side. This is 2 UNREPORTED JUDGMENTS also referred to as Balfour lane. He lived at 2/49 Kensington Road, which is on the eastern side of Kensington Road and opposite the entrance to the unmarked laneway. Although there is a dispute as to what happened, it was not in issue, on the hearing, that Mr Murphy wished to make a U-turn in Kensington Road, perhaps utilising the additional space provided by the unmarked laneway, with a view to parking his vehicle at the eastern kerb in the general vicinity of his residence. The manner in which he sought to achieve this is in dispute, as are the circumstances in which the motor cycle being ridden by the appellant came into contact with the motor vehicle being driven by Mr Murphy. As a consequence of the collision the appellant was thrown from the motor cycle to the roadway and sustained personal injuries. He sued for damages in respect of these injuries, the proceedings being commenced by an Ordinary Statement of Claim filed in the District Court on 12 March 1987. Unfortunately they did not come on for hearing until 2 February 1995, almost eight years after their institution. They were heard by his Honour Judge Sinclair QC and, on 3 February 1995, his Honour found that Mr Murphy had not been guilty of negligence and entered judgment for the respondent accordingly. Although the issue of damages was fought out at the hearing his Honour made no findings in respect of the damages to which, in his opinion, the appellant would have been entitled, if he were otherwise entitled to judgment, and he made no finding as to the allegations of contributory negligence made by the respondent. In consequence if the appeal is upheld the case must, in my opinion, be sent back for a new trial, which, having regard to the time taken to bring the matter on for hearing, can only be regarded as a matter of regret. There were essentially two versions as to how the accident occurred. His Honour set forth that given by the appellant in the following terms: "According to the sworn evidence of the plaintiff, he followed the defendant's car north in Kensington Road. There was a distance of about three car lengths between the vehicles. At the intersection with Balfour Lane the car turned left into the street and then did a U-turn in one continuous movement without the driver giving any signal of his intention to do so. There were parked cars on both sides of the street. The plaintiff veered to his right onto the incorrect side of the road to avoid a collision. However, the defendant's vehicle continued turning and the plaintiff's left leg was struck by the left side front bumper bar of the car. The plaintiff was knocked backwards off his motor cycle to the ground, knocked out for a short period and woke up lying on the road shortly thereafter." As it may seem strange that the left side bumper bar, ie the passenger side bumper bar, collided with the motor cycle being ridden by the appellant it is desirable to refer to the evidence, AB16:- "Q. What part of the motor car struck your leg? A. The bumper bar. Q. Which part of the bumper? A. The left hand. Q. Opposite the driver's side? A. That's correct. Q. The passenger side corner of the bumper bar, was it? A. That's right." The appellant gave evidence that this occurred "practically touching the parked cars" on the eastern side of Kensington Road. MR MURPHY'S STATEMENT Mr Murphy could not be found to give evidence at the hearing. However, on 3 December 1991, he made a written statement, which was tendered pursuant to s14B of the Evidence Act. The first ground of appeal is that his Honour was in error in admitting this statement because Mr Murphy was a person "interested at WROFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Rolfe AJAB a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish', such as to make it inadmissible pursuant to s14B(3). The statement was, apparently, taken by a private inquiry agent and Mr Murphy acknowledged that it had been explained to him that as a result of the accident the appellant had lodged a personal injury claim. He set forth that he was driving home on the evening in question and he described the accident thus: "T pulled over to the left hand side of the road, and it was my intention to do a U-turn and then park my vehicle near the front of my place. Before doing this and when I had pulled over to the left, I became stationary. I looked in my rear view mirror, and from about a hundred metres or so, I could see the headlight of a motor cycle, coming in a northerly direction or up the hill. When I was stationary, I was positioned more or less parallel to the kerb. I remained there and recall thinking that the bike would hit me if it continued in the same line. I would have had my left hand blinker light on at that time. I was unable to do anything, because the kerb was on my left. It all happened so quickly. I watched the bike continue towards me, and the front wheel or fork area contacted my rear bumper. The bike took a path on the correct side of the street, in its normal lane of travel. ... [ felt the car jolt upon impact but it did not move. I had my foot on the brake. The bike bounced off the car. The rider went one way, and the bike continued forward for about ten metres or so. The rider came to rest behind my car and slightly to the right." Mr Murphy described what happened thereafter, the absence of any damage to his vehicle and his failure to report the matter to the police. He said he was not required to attend any Court hearing and was not injured as a result of the accident. Subsequently he said: "The one remarkable thing about this accident was that the rider took no evasive action visible to me, on his approach and subsequent collision with the back of my car. As I have said, I first saw him from a distance of roughly one hundred metres and there was nothing between him and I at that time. He appeared to be looking straight ahead.... It is my opinion that this accident was the total fault of the motor cycle rider. This is because, I know that I was absolutely stationary and in full view of the rider, with my lights on. I could see him approaching and could not see why he did not take steps to avoid the collision. I knew what was about to happen if the rider continued in the same line of travel, and of course that did happen, with the resulting impact. I have read this statement and feel that it contains an accurate account of the circumstances surrounding this accident. It has been given to the best of my recollection. I have been given a copy for my records." In these circumstances the issue for determination by his Honour was raised. HIS HONOUR'S REASONS After recounting the competing versions his Honour observed that the appellant "presented in evidence quite well" and appeared to be a truthful and reliable witness, who certainly did not overstate his disability. However, he was of the view there were a number of factors which "taken cumulatively, throw doubt on" his version of the accident. The first matter to which his Honour referred was that a blood alcohol test administered to the appellant on his admission to hospital disclosed a blood alcohol reading of a concentration of 0.194 grams per 100 millilitres of blood, 4 UNREPORTED JUDGMENTS and the appellant admitted having six to eight schooners of beer over a period of several hours prior to the accident. There was evidence from Professor Starmer that this blood alcohol level would have substantially impaired the appellant's capacity to ride a motor cycle safely. Secondly, his Honour referred to medical reports from the Prince of Wales Hospital, which included an ambulance report in which the history commenced with the words: "Clipped car rear tail light". He referred to another portion of that report, being a diagram showing "the position of the patient and 'the point of impact'. His Honour observed that if the diagram was a correct representation of what was observed by the ambulance officer it showed the point of impact as the right hand rear corner of the motor vehicle. He continued: "These two entries in the ambulance report are consistent, one with the other, and there is reasonable grounds for the conclusion that they record what the plaintiff told the ambulance officer in the history and what the ambulance officer observed when he arrived at the scene very shortly after the accident occurred, the position of the plaintiff lying on the roadway alongside the vehicle being consistent with the defendant's account of the accident and inconsistent with the plaintiff's account." Thirdly, his Honour noted the hospital records included an entry by a registered nurse attending the plaintiff: "Riding motor bike and apparently clipped rear light of car." His Honour contrasted these entries with the fact that there was nothing in the Traffic Collision Report of the appellant's version of how the accident occurred, notwithstanding he was interviewed by the police some days after the accident. Fourthly, his Honour referred to the fact, which was favourable to the appellant, that there was no evidence to suggest that he was aware that Mr Murphy lived opposite Balfour Lane, the significance of this to his Honour being that the appellant would not be aware that Mr Murphy was seeking to make a U- turn to park in front of his residence, rather than remaining stationary on the western side of the road. His Honour continued, AB124: "Taking these factors into account and treating with a considerable degree of caution a statement made by witnesses not called to give evidence, I have come to the conclusion that I am unable to prefer the account given by the plaintiff to the version set out in the defendant's statement, which, I should add, appears to me to have a ring of truth to it and does not appear to be overly concerned to criticise the conduct of the plaintiff, nor to be adamant about things of which the defendant says, in effect, he was not sure." His Honour gave an example of that and concluded that Mr Murphy's version was more likely to be correct than that proffered by the appellant. THE FIRST AND SECOND GROUNDS OF APPEAL The first and second grounds of appeal assert his Honour erred in finding that Mr Murphy was not "a person interested within the meaning of s14B(3)" and in admitting his statement dated 3 December 1991. In concluding the statement should be admitted his Honour said it was one made on 3 December 1991 and typed by a Ms Julie Jones, a private investigator. Ms Jones gave evidence that the signature on the statement was her's and that she was satisfied Mr Murphy signed it. She was cross-examined about her practice in taking statements and, at AB39, she said she "mainly" typed statements out as persons spoke, that occasionally WROFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Rolfe AJAB she would help with the phrasing or put the statement into more succinct sentences", but that the substance of the contents of the statement were Mr Murphy's. It was not put to Ms Jones that in the course of her interview with Mr Murphy she told him of the way in which the appellant alleged the accident occurred. His Honour was satisfied Mr Murphy could not be found, which is hardly surprising having regard to the time which elapsed between the date of the accident and the date of the hearing, and there is no challenge to this. His Honour then focussed upon the one submission, namely that Mr Murphy, being the owner and driver of the vehicle at the relevant time, "is a person interested in this litigation". He said that there was little doubt, in his mind, "certainly at first blush", that the driver of a vehicle concerned or involved in the accident "would be a person interested". He said: "However, from time to time the Court of Appeal has commented on the inadequacy or ambiguity of those words used and I have been referred to several authorities by counsel, the principal one being the decision of the Court of Appeal in Brown v Petranker 22 NSWLR 717." His Honour referred to 727 of that judgment, and continued: "However, it does confirm the current test by which a Court should make a finding of fact as to whether or not Mr Murphy was or was not a person interested. As Mr Justice Clarke says, it does not mean interested in the wide sense, but having such an interest as could lead to the belief that the maker of the statement had an interest to distort the truth. So, admissibility depends on the finding of the fact. Did Mr Patrick Joseph Murphy on 3 December 1991 have such an interest at the time he made this statement in relation to the motor vehicle accident that happened quite a few years before?" His Honour recorded the submissions made on behalf of the respondent that Mr Murphy had no interest in the outcome of the case as he was an insured motorist, that he was not at risk or in jeopardy himself because too long a time had passed for him to be worried about whether or not he would be prosecuted for not reporting the matter to the police, and that he had no financial interest in the case. His Honour recorded the submissions on behalf of the appellant that the onus lay on the respondent to show Mr Murphy did not have such an interest "as could lead to the belief that he might be interested in distorting the truth". A submission was also made that Mr Murphy did not call the police, although the police spoke to him several days later. His Honour concluded: "On the question simply of admissibility as distinct from weight, I am inclined to the view that it has not been established that Mr Murphy is, in the circumstances of this case, a person interested. It would be very easy to come to the contrary view because, after all, Murphy is the real defendant in the case." The question of the meaning of s14B(3) was considered by Begg J in Costa v Costa (1967) 87 WN 20, in which his Honour found a private inquiry agent was not a person "interested"; by Maguire J in Walters vy Government Insurance Office of New South Wales (1968) 88 WN 622, in which his Honour found that a passenger in a motor vehicle was not a person "interested", and by the Court of Appeal in Wentworth v Rogers (No 10) (1987) 8 NSWLR 398. At 404 Glass JA, who delivered the judgment of the Court, after referring to those cases said of the words "person interested": 6 UNREPORTED JUDGMENTS "Tt does not mean interested in the wide sense but having such an interest as could lead to the belief that the maker of the statement had an interest to distort the truth. By this criterion a solicitor recording his client's instructions at the time is not a person interested then and a fortiori is not such a person when having ceased to be retained is asked to recall those instructions." In Brown v Petranker (1991) 22 NSWLR 717 Clarke JA adopted that statement and noted that his Honour's test was not substantially different from that suggested by Sholl J in Tobias v Allen (No 2) [1957] VR 221 at 223: "\.. if, in short, anything is shown which is reasonably calculated to affect the impartiality of the person making the statement." Subsequently on the same page, after referring to the way in which the trial Judge had considered the matter, Clarke JA continued: "Tn my view that approach deflects attention from the question which faces the Court, that is, whether the deponent had an interest to distort the truth. The fact that a person is a mere relative of a party may be sufficient in itself to indicate such an interest." The same test was applied in Accident Insurance Mutual Holdings Limited v McFadden (1993) 31 NSWLR 412 per Clarke JA at 434-5. It is clear from these authorities that his Honour posed for himself the correct test. However, it was submitted on behalf of the appellant that he had regard to an incorrect test or, alternatively, misapplied the correct one to the facts of the case because it was submitted he was concerned to consider whether Mr Murphy was a person interested "in this litigation". Although his Honour made reference on two occasions to that type of interest there is no doubt, in my mind, that a fair reading of his reasons shows that he directed himself to the correct question, and I have set forth that part of the judgment in which that appears. The question then is whether his Honour was correct in finding that Mr Murphy was not "interested". In support of the submission he was, it was put that he was the driver of the vehicle, who knew the appellant suffered personal injury requiring ambulance attention and, inferentially, hospital treatment, and he gave a statement to the police several weeks after the accident when summary proceedings were within time and when he might have been prosecuted for a summary or indictable offence, fined, or lost his licence. In 1991 he was, with his present knowledge of having given one version to the police, which was recorded by them, asked for the statement in a context in which he must have known it was for use in litigation of some sort, and, accordingly, he had a plain interest to make a statement that would not, in substance, conflict with what he had previously said and seen recorded about the matter. It was not suggested there was anything in Mr Murphy's statement, which was inconsistent with the Traffic Collision Report, AB91. It recorded that the appellant's vehicle was travelling north in Kensington Road and "came into collision with the rear veh 2 which had previously been driven nth in Kensington Rd and had become stationary at western kerb Kensington Rd near unnamed lane". The question remains whether in the circumstances of this case, and notwithstanding that Mr Murphy was the owner and driver of the other vehicle involved in the accident, he had an interest to distort the truth. Of necessity this will be a difficult matter to resolve because the person, whose statement is sought to be tendered, was not available for cross-examination. Therefore the findings must be made based upon the appropriate inferences to be drawn. WROFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Rolfe AJAY Ihave come to the conclusion that his Honour was in error in holding that Mr Murphy was not a person "interested". It was submitted that the following matters led to the conclusion to which his Honour came: (a) Mr Murphy was not injured in the accident and, accordingly, he had no claim against the appellant. (b) Mr Murphy's motor vehicle was not damaged in the accident and, accordingly, he had no claim against the appellant for property damage. (c) Mr Murphy's statement was not taken in circumstances where he was seeking to refute some other version of the accident, which could have inculpated him. There was no suggestion to Ms Jones that she put to Mr Murphy the version of the accident for which the appellant contended. Accordingly no circumstance arose, which would require Mr Murphy to give a contradictory one, which exculpated him. (d) Mr Murphy was not charged with any offence, there was no suggestion that he would be, and, in any event, over five years had elapsed since the accident at the time the statement was taken. (e) Whilst it is probably inherent in what I have said, there was no suggestion that Mr Murphy had any financial or other interest in the proceedings brought by the appellant or in their eventual outcome. Further, the legislation in force at the time precluded Mr Murphy's being personally liable. I have come to the conclusion that the proper finding is that Mr Murphy was a person "interested" within the meaning of the principles to which I have referred. The fact that he was the driver of the motor vehicle, which was involved in the accident in some way, and the fact that he must have known, at least inferentially, that his conduct was being called in question, give rise to the inference that he was interested in the sense of putting forward a version, which would be exculpatory of his conduct. That, in my view, is sufficient to satisfy the statutory test. Although a separate submission was made that the statement contained other prejudicial material to the appellant it does not seem this point was taken before his Honour and, even if it was, that his Honour had any particular regard to such prejudicial material. THE THIRD GROUND OF APPEAL The appellant complains that his Honour erred in admitting the ambulance officer's report or, alternatively, if it was admissible, erred in placing any weight upon the diagram contained in it. That report became Exhibit 5 and is dated 10 October 1986. Objection was taken to its admissibility, which was over-ruled, although there are no reasons recorded for this. Counsel, who then appeared for the respondent, sought to tender the ambulance report dated 10 October 1986 and the hospital notes. Counsel for the appellant objected and stated he would require the ambulance officer for cross-examination. His Honour is recorded as stating that he thought there was sufficient evidence to admit that passage in the "comments" paragraph on page 2 of the form, which read: "The patient states he has had alcohol and barbiturates this pm." He also expressed the view: "Tt is always preferable to have the ambulance officers." Thereafter his Honour ruled: "On further consideration-of the ambulance report form, I will also admit the sketch made by the ambulance officer seeking to indicate the point of impact and position of the patient, but I will confirm the observation I made in the course of 8 UNREPORTED JUDGMENTS argument, that the probative value of it is very slight and that I would be most unlikely to prefer such evidence to the sworn evidence of a witness." The report, to that extent only, was admitted. Mr Mater submitted that on a fair reading of the transcript the whole of the ambulance officer's report was admitted and hospital notes were admitted also. This submission gains some support from the description of Exhibit 5, but absolutely none from what his Honour stated, in the most express terms, he was admitting. Further, the hospital notes were not included in the appeal papers and, it appears, no suggestion was made that they were tendered prior to the hearing of the appeal. It is submitted on behalf of the appellant that the sketch was inadmissible. The submission continued that it could only be admissible pursuant to s14CE and, for that to be applicable, it had to appear that the ambulance officer had personal knowledge of the facts represented or stated. The assumption seems to be that the document was tendered pursuant to sl4CE and, prima facie, subs(4) and subs(5) were met. I say this is the assumption because there is no statement as to the basis for the tender on the transcript. The question then is whether the statement was made by "a qualified person". The ambulance officer, in my opinion, fulfilled the first requirement of being a "qualified person being engaged in the business or retained for the purposes of the business" of the ambulance service. However, in addition, to meet the definition of a "qualified person", he must have or reasonably be supposed to have had "personal knowledge of the fact stated". It is suggested this sits uneasily with the provision of s14CE(3)(a), which makes a statement admissible notwithstanding the rules against hearsay. But that section does not make admissible a statement which is otherwise not admissible. The diagram indicates an arrow pointing to the rear offside of the motor vehicle, which would be consistent with the version put forward by Mr Murphy. In his judgment his Honour, after referring to the diagram, continued: "Tf this diagram is a correct representation of what was observed by the ambulance officer, it shows the point of impact as the right hand rear corner of the motor vehicle. These two entries in the ambulance report are consistent, one with the other, and there is reasonable grounds for conclusion that they record what the plaintiff told the ambulance officer in the history and what the ambulance officer observed when he arrived at the scene very shortly after the accident occurred, the position of the plaintiff lying on the roadway alongside the vehicle being consistent with the defendant's account of the accident and inconsistent with the plaintiff's account." There was some disputed evidence as to whether there had been a movement of Mr Murphy's vehicle before the ambulance arrived, the appellant stating, AB29, that he was under the impression Mr Murphy moved his vehicle before the ambulance arrived. Prima facie the sketch indicated the situation as observed by the ambulance officer when he attended the scene of the accident, and his Honour was entitled, if it was otherwise admissible, to draw inferences from this document. The difficulty, however, is that there was no evidence of any damage to Mr Murphy's vehicle, which would enable the point of impact to be identified. Therefore, so it seems to me, the ambulance officer must have made that note by reference to something he was told by the plaintiff or by some unidentified person at the scene of the accident or drawn a conclusion from something he was told, which conclusion may or may not have been justified. That would mean, firstly, that the ambulance officer did not have or could not reasonably be supposed to have had WROFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Rolfe AJAD "personal knowledge" of that fact, although if he derived the information from another person the statement would none-the-less be admissible pursuant to s14CE(3)(a) provided, perhaps, that the person, who made the statement to the person who made the statement in the document, had personal knowledge of what had transpired. In Re Marra Developments Ltd and The Companies Act [1979] 2 NSWLR 193 at 198 Needham J said: "T agree with the submission of Mr Hely that PtIIC makes admissible statements in documents, and not documents themselves. Accordingly, the presence of an admissible statement in a document does not make the balance of the document admissible, if it is otherwise inadmissible. I also agree with his submission that, if a statement contained in the document appears to have been made to the maker of the document, that is, it contains hearsay material, the statement is evidence of the facts asserted in the statement only if it appears to have been made by another qualified person, leaving aside the application of s14CE(6)(b)(ii), who must make the statement in the course, and for the purposes of, the business, and I emphasise the words 'the business'." There is no evidence that the ambulance officer received any information from another qualified person. In Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 569 Hutley JA suggested that a statement made in hospital records that a patient was in pain was evidence of that fact, although the person making the record could only rely upon the assertion by the person of the feeling of pain, supported perhaps by a consideration of the injuries sustained by that person. In my opinion the statement must be made by a "qualified person" who, inter alia, must have or reasonably be supposed to have personal knowledge of the fact stated, and that requirement is subject to s14CE(3), which makes "a statement" admissible notwithstanding the matters set forth in the subsections, but subject to the further qualification to which I referred. This is consistent with the policy of the section, which is to allow documents to be admitted where there is no reason to suspect their contents are other than accurate. In the present case however I am not satisfied that the material in the sketch was derived from a source, which satisfies the requirements of s14CE and, in my view, its tender should have been rejected. THE FOURTH GROUND OF APPEAL The fourth ground of appeal is that his Honour erred in finding that the appellant's blood alcohol reading had any causal nexus in the circumstances of the accident. His Honour was of the view that the reading was "very high", and he was satisfied by the evidence of Professor Starmer that that blood alcohol level "would have substantially impaired" the appellant's "capacity to safely ride a motor cycle". The report of Professor Starmer was admitted after objection, although there is no ground of appeal asserting that his Honour was in error in admitting it. In that report, AB110, Professor Starmer proffered the opinion that he calculated the appellant's most likely blood alcohol concentration at the time of the collision was.209, with an upper limit of.214 and a lower limit of.204, ie higher than that to which his Honour referred. At AB111 Professor Starmer said that a blood alcohol concentration of 0.194 would have meant that the appellant's ability to ride a motor cycle with safety would have been greatly reduced. He concluded his report, AB112: 10 UNREPORTED JUDGMENTS "In conclusion, I consider that" the appellant "would have, almost certainly, been highly intoxicated at the time of the crash and that the effects of his intoxication would be very difficult to discount as being a major causal factor in what was a typically alcohol-related collision." His Honour's findings are criticised on the basis that he found the over- indulgence in alcohol "might also affect the reliability of his recollection of how the accident occurred" when there was no evidence that his recollection was adversely affected. It is further submitted that if the accident happened as the appellant deposed the presence or absence of alcohol would have made no difference. As I said his Honour did not consider contributory negligence and I do not think the matter can be put as bluntly as this. In my opinion his Honour was entitled to have regard to the evidence of Professor Starmer in concluding, as he did, that the alcohol level "substantially impaired" the appellant's "capacity to safely ride a motor cycle". This would give some credence to the motor cycle's having collided with Mr Murphy's stationary vehicle. THE FIFTH GROUND OF APPEAL This ground asserts the verdict was against the weight of the evidence. The submissions are that his Honour relied on matters not in evidence. Firstly, it was submitted that his Honour had regard to the history in the ambulance report, whereas it appears at AB30 he had only admitted the statement I have quoted and the sketch. However, at AB123 his Honour referred to other portions of the report which were not in evidence, namely the history that the motor cycle clipped car rear tail light". His Honour compared this evidence with the point of impact and found the consistency to which he referred. In my opinion, the statement in the ambulance report "clipped car rear tail light" was not in evidence. It was nextly submitted that his Honour had regard to the continuation notes in the hospital records stating: "Riding motor bike and apparently clipped rear light of car." Although it appears at AB29-30 that an attempt was made to tender the Prince of Wales Hospital notes and at AB30 line K that they were admitted, they do not appear in the Appeal Book and it does not appear that anything, other than the various statements to which I have referred, were admitted. On the other hand the documents must have been before his Honour but I do not see how, in the absence of any evidence that the appellant told the nurse that the accident occurred in the way recorded, that could be admissible on any basis. Nextly it is submitted that his Honour had regard to the summary in the Traffic Collision Report AB91. At AB31 his Honour rejected that part of the document. However, at AB124 his Honour referred to the summary, although in terms which do not satisfy me that he made any conclusions adverse to the appellant. Further, as I have noted, his Honour thought that probably favoured the appellant and so do I. Nextly it was submitted that his Honour was in error in preferring an explanation for not calling the police, which was given by Mr Murphy, to an explanation in relation thereto said to have been given by the appellant. But there was no evidence that the appellant gave any such explanation. The appellant was accepted by his Honour as a truthful and reliable witness, who presented in evidence "quite well". However, his Honour rejected the appellant's evidence for the following reasons: (a) The blood alcohol reading; WROFSTEE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Rolfe AJA) (b) The statement in the ambulance report, which was not in evidence, that the motor cycle "clipped car rear tail light"; (c) The diagram in the ambulance report, which his Honour found to be consistent with what was set out in the history; (d) The statement in the hospital records: "Riding motor bike and apparently clipped rear light of car". which was not in evidence; and (e) Perhaps the reference to the police summary, which was not in evidence. Further, his Honour seems to have been in error in suggesting that the appellant had proffered a reason for not calling the police, which, on the evidence, he had not. The problem caused by his Honour's taking into account the matters not in evidence before him is that he stated expressly he relied upon the cumulative effect of all the evidence to come to the conclusion that the version of Mr Murphy should be preferred to that of the appellant It is clear, from his reasons, that he adopted this approach In Stead v State Government Insurance Commission (1986) 161 CLR 141 Mason, Wilson, Brennan, Deane and Dawson JJ said at 145:- "Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a Court of Appeal to conclude that compliance with the requirements of natural justice could have made no difference.... However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevantly to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. This difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial." At 147 their Honours said:- "Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result." In my opinion his Honour had regard to material, which was not in evidence. He had regard to that material to determine whether he should accept the evidence of Mr Murphy in preference to the evidence of the appellant as to how the accident occurred. There is no doubt that he used the material together with other material "cumulatively", so it is not possible to dissect from his reasoning the material, which was not in evidence and upon which he relied. Even if it were the respondent carries the very heavy onus of showing that had his Honour not had regard to that material it could have made "no difference to the result", and that the appellant was deprived "of the possibility of a successful outcome". These matters were considered recently by this Court in GN Simmonds v MC Spooner [No 31] (28 March 1995-unreported). 12 UNREPORTED JUDGMENTS CONCLUSIONS For these reasons I am of the view that in so far as his Honour made findings based on material not in evidence before him there was a denial of procedural fairness such as to entitle the appellant to a new trial. It was submitted on behalf of the appellant that the new trial should be confined to the issue of damages on the basis that the findings of fact made entitled the appellant to judgment on that issue. However, a fair reading of his Honour's judgment does not support the view that he accepted the appellant and, in any event, there are still issues of contributory negligence to be considered. I propose that the appeal be allowed, the judgment for the respondent be set aside, the matter be remitted to the District Court for a new trial on all grounds and the respondent pay the appellant's costs of the appeal and receive a certificate pursuant to the Suitors Fund Act if otherwise entitled to it. REPRESENTATION: COUNSEL: Appellant: Mr JE Maconachie QC and Mr HJ Halligan Respondent: Mr HJ Mater SOLICITORS: Appellant: Michael E Bradstreet Respondent: GM Meadows