ZAFIRIS vy GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and COLE JJA 14 March 1995, 14 March 1995 [1995] NSWCA 534 NEGLIGENCE EVIDENCE — fresh evidence — not shown that evidence could not have been obtained with reasonable diligence for use at trial — not shown evidence would have materially affected the outcome of the trial. NEGLIGENCE — FRESH EVIDENCE The appellant had been found liable in negligence for bodily injury resulting from a motor vehicle collision. The evidence accepted at the hearing was that the appellant had disobeyed a traffic control light. Subsequent to the hearing, the appellant received evidence which supposedly tended to contradict evidence at the trial about the state of the traffic lights at an earlier phase. However, the fresh evidence was consistent with the evidence at the trial concerning the material phase of the lights. On appeal, it was sought to tender this evidence — HELD — The tender should be rejected since — (a) it was not shown that the evidence could not have been obtained with reasonable diligence for use at the trial; and (b) it was not demonstrated that the evidence would have materially affected the outcome of the trial. ORDERS Appeal dismissed with costs. Gleeson CJ This is an appeal from a decision of Master Malpass in proceedings brought by the plaintiff against the Government Insurance Office claiming damages for bodily injury resulting from a motor vehicle collision. The basis of the appellant's claim was that a vehicle in which he was travelling collided with a much larger truck being driven by a man named Terrence Farrar at the intersection of Livingstone Road, Sydenham Road and Frazer Street, Marrickville. It was agreed at the hearing that the total loss and damage suffered by the plaintiff as a consequence of his injuries amounted to $165,000. The case was defended by the Government Insurance Office on the basis either that there was no negligence on the part of Mr Farrar or, alternatively, that if there were negligence there was also contributory negligence on the part of the appellant and indeed that the accident was principally the appellant's fault. The argument for the defence was substantially accepted by Master Malpass who apportioned responsibility between the parties to the collision on the basis that the appellant was 85 percent responsible and Mr Farrar was 15 percent responsible. Accordingly there was judgment for the appellant in the sum of $24,750 which is 15 percent of $165,000. Before going to the ground upon which this appeal is brought it is necessary to say something brief about the nature of the evidence before Master Malpass and the basis upon which he reached his conclusion. The collision occurred, as I have said, at the intersection of Livingstone Road, Sydenham Road, and Frazer Street, on the morning of the accident. The appellant, who was driving a relatively small truck, was proceeding along Frazer 2 UNREPORTED JUDGMENTS Street across the intersection and into Sydenham Road which is in effect a continuation of Frazer Street. Mr Farrar's vehicle, which was a large semitrailer, was travelling along Sydenham Road towards the intersection and he intended to make a right hand turn into Livingstone Road. The intersection was controlled by traffic lights. The evidence of the appellant, which was rejected by the Master, was that he was proceeding across the intersection through a green light. The evidence of Mr Farrar, which was accepted by the Master, was that as he approached the intersection he was guided into the intersection by an arrow which turned green before he arrived at the intersection. It seems to have been common ground that Mr Farrar's truck was moving quite slowly at the time of the collision and his evidence was that when the arrow turned green he was making his way very slowly into Livingstone Road. It was common ground at the trial that if Mr Farrar was to be believed when he said that he was proceeding with the benefit of a green arrow to make his right hand turn into Livingstone Road, the corollary of that was that there was a red light facing the appellant and that he must have driven through a red light. The basis of the Master's conclusion was that there was some element of fault on the part of Mr Farrar in that he acknowledged that he did not see the appellant's motor vehicle coming towards him and to that extent he was failing to keep a proper lookout. On the other hand, Master Malpass concluded that there was a much larger element of fault on the part of the appellant on the basis that he drove through a red light. The evidence of Mr Farrar that was accepted included the following: Q Doing the best you can and taking your time would you describe what you did and what you saw as you approached the intersection in the time immediately prior to the collision? A In approaching the intersection the lights were green with a red arrow. Q This is as you were travelling along Sydenham Road towards the intersection? A That is right. Q Just stopping there at what point did you note that or how far were you from the intersection when you noted that the lights were green but the arrow was red? A Probably 100 metres. Q Continue on? AI went back through my gears into about third gear. Q Third of how many gears? A Of ten gears. Q Yes? A Nearly approaching the intersection I got a green arrow to turn right. Q Stop there. Approximately how far from the intersection were you when you got the green arrow? A Probably four or five metres. Q Yes? A Then I started to accelerate towards the intersection and turn right. Q At what speed were you travelling immediately prior to commencing to accelerate? A Probably 15 to 20 kms per hour. Q In third gear? A In third gear. URJ — ZAFIRIS v GOVERNMENT INSURANCE OFFICE OF NSW (Gleeson Cu) 3 Q Are you absolutely certain that the arrow was green before you commenced to make the turn? A Yes positive. Q Did you give any indication of your intention to make a right hand turn? AI had the blinker displayed right hand turn. He went on to describe the collision. He said that the bull bar that was on the front of his truck was struck heavily by the oncoming vehicle being driven by the appellant and that there was quite significant damage to the prime mover. That evidence was accepted as truthful by the Master, who regarded the appellant, on the other hand, as an unreliable witness. Master Malpass said: The plaintiff did not impress me as a truthful or reliable witness. His version lacked plausibility. He gave inconsistent evidence. He appeared to be evasive in answering questions put to him in cross examination. He appeared intent on answering questions in a manner which he thought put his case in the best possible light. In contrast I formed the impression that Mr Farrar did his best to give a truthful and reliable account of the accident. He gave his evidence in a frank and open manner. He freely made concessions... In my view the evidence of Mr Farrar is to be preferred to that of the plaintiff I accept his version of the accident." That was the basis upon which Master Malpass decided the case as he did. The sole ground of appeal pursued on the part of the appellant is that this Court should receive fresh evidence and, in the light of that fresh evidence, should order a new trial. The nature of what is said to be the fresh evidence is as follows. At the hearing before Master Malpass there was tendered in evidence by senior counsel for the appellant, and received as Ex A, a plan provided by what was then the Department of Main Roads together with an accompanying letter from the Roads and Traffic Authority signed by Mr Warne said to be a Traffic Manager. The letter was addressed to a firm of solicitors representing the appellant. On the plan Ex A was a diagram which showed three phases of the flow of traffic controlled by the lights at the intersection to which reference has been made. The fresh evidence sought to be relied upon is another letter written to the appellant's solicitors by the Roads and Traffic Authority subsequent to the hearing before Master Malpass, which is also accompanied by a diagram substantially similar to t.hat in Ex A but in one small but, so the appellant says, critical respect slightly different. If the evidence of Mr Farrar, which was accepted by Master Malpass, was correct, it is obvious enough, as counsel concedes that at the time of the collision the traffic must have been within what is referred to on the diagram Ex A as phase C. That is identical with phase C shown on the new document. As one would expect a green arrow in the direction pointing from Sydenham Road to Livingstone Avenue is accompanied by a red light preventing flow across the intersection from Frazer Street into Sydenham Road. There is no difference in that regard between the diagram that was tendered on behalf of the appellant at the trial and the document that has been tendered on behalf of the appellant at this appeal. The difference is that in what is shown as phase B on the diagram, part of Ex A, there is a clear prohibition of a right hand turn from Sydenham Road into Livingstone Avenue, whereas in phase B in the document tendered as fresh evidence, there is not a clear prohibition but a mark that seems to designate the possibility of making such a right hand turn subject, of course, to keeping clear of any traffic flowing through the intersection from Frazer Street to Sydenham 4 UNREPORTED JUDGMENTS Road. What effect, if any, that slightly different diagram might have had if it had been available at the trial is entirely speculative. It is argued by counsel for the appellant who, in the respect that I have indicated, seeks to falsify part of the evidence upon which the appellant relied at first instance, that the availability of this slightly different diagram would have cast doubt upon the evidence of Mr Farrar to the effect that the arrow was red as he approached the intersection but turned green when he got to the intersection. It is argued by counsel for the appellant that the new diagram would justify an inference, that, although there was a green arrow in phase C, there was or may have been no red arrow in phase B. In my view the material upon which the appellant seeks to rely should not be received by this Court as fresh evidence. The conditions which apply to the reception by this Court on appeal of evidence as fresh evidence have, in my view, not been satisfied. No explanation appears from the evidence as to how it came about that there is the slight difference to which I referred between the plan Ex A and the plan on which the appellant now seeks to rely. In particular, we have no material before us to satisfy the condition that the material now relied upon could not have been obtained with reasonable diligence for use at the trial. Furthermore, as I have indicated, in my view the effect that the reception of the different plan might have had on the outcome of the trial is entirely speculative. The trial resulted as it did substantially because the Master thought that Mr Farrar was an honest and reliable witness and held the opposite view of the appellant. It is far from clear that the new material upon which the appellant now seeks to rely would have been of substantial importance in relation to that assessment of credibility or reliability. I would propose that the Court should reject the tender of this further evidence. It is conceded by counsel for the appellant that in that eventuality the appeal must necessarily fail and I would therefore also propose that the appeal should be dismissed with costs. Priestley JA I agree. Looking at this case from the appellant/plaintiffs point of view it is understandable that he should seek to appeal. His account of events has not been accepted by Master Malpass and no doubt he wanted to vindicate his own version of the facts as well as increase his damages. However, the longstanding practice of this Court as an appeal court is that it does not interfere with the factual findings of trial courts where questions of credibility and reliability of witnesses are involved unless it is plain to the appeal court that there has been some very clear failure on the part of the trial court to use properly the advantages which Judges have, who see and hear witnesses, as appeal courts do not. This course of practice in this Court, as well as being one of very long standing, is one which the High Court in a number of recent decisions has made very plain, must be scrupulously adhered to. Counsel for the appellant sensibly realising that in the circumstances of the present appeal the course of practice I have referred to meant the appeal must inevitably fail sought to put the appeal on a different basis by asking the Court to receive evidence which was not put before Master Malpass. Had this evidence been received by the Court counsel would then have submitted that the course of practice I have referred to M as no longer applicable and would have sought a new trial, but the rules about further evidence on appeal URJ — ZAFIRIS v GOVERNMENT INSURANCE OFFICE OF NSW (Gleeson Cu) 5 which have been mentioned by the Chief Just.ice usually prevent the Court accepting evidence not tendered at the trial unless the parties seeking to rely on it can show it was not obtainable by reasonable diligence at the time of the trial and would be likely to have had a material effect upon the conclusion reached at the trial, had it been tendered there. In the present case I do not think either of those conditions is satisfied. There is nothing unusual about the case which calls for the Court to make an exception to the usual rules. The evidence now sought to be put before the Court should therefore be rejected. Thus the only basis for argument relied on by the appellant in the appeal is not available to him and the appeal should be dismissed. I agree with the orders proposed by the Chief Justice. Cole JA I also agree with the reasons and the orders proposed by the Chief Justice. Gleeson CJ The orders of the Court are as I proposed. Appeal dismissed with costs. COUNSEL: APPELLANT: N Delaney RESPONDENT: H Shore SOLICITORS: APPELLANT: Terner and Salier RESPONDENT: Solicitor for Government Insurance Office of NSW