NORRIS v BLAKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 29-31 July and 1 August 1996, 8 October 1996 [1996] NSWCA 402 Negligence — motor vehicle accident — question whether plaintiff was driving under the influence of alcohol — evidence as to whether blood/alcohol certificate related to the plaintiff Contributory negligence — apportionment of responsibility — plaintiff driving too fast in circumstances and failing to keep proper — lookout — driving while under the influence of alcohol Paul Jonathon Blake (the respondent) received very grave injuries when he was involved in a motor vehicle accident on 1 December 1986. He claimed the accident was caused by the negligence of Walter Thomas Patmore Norris (the appellant) and he sued to recover damages. The proceedings were heard by Hulme J. The appellant admitted liability and his Honour found that the respondent was guilty of contributory negligence. The damages awarded, $45,925,725 in total, were reduced by 25 per cent. The appellant has appealed challenging both the apportionment and the assessment of damages, this judgment being concerned only with the former. He alleged that his Honour should have found that the respondent was driving while under the influence of alcohol. In the alternative, the appellant sought to lead fresh evidence on the appeal which falsified the basis of his Honour's finding that the respondent was not affected by alcohol. The respondent has cross-appealed, contending that his Honour was in error in finding that he had been negligent. Alternatively, he submitted that his Honour had overlooked an important aspect of the appellant's negligence and that there should be a much smaller finding against the respondent. Held: CROSS-APPEAL (1) respondent's negligence: Having regard to the objective facts and the possible inferences which could be drawn as to the respondent's response to the emergency, it seems clear his Honour was correct to find that the high speed maintained by the respondent was a significant cause of the accident and reflected a significant departure from the standard of reasonable care. (2) apportionment: The finding of 75 per cent responsibility on the part of the appellant is indicative of his Honour's view that the appellant's negligence was of a high order and that he should bear by far the major responsibility for the damage. The submission that the contribution awarded against the respondent ought to be reduced should be rejected. APPEAL (3) alcohol issue: Having regard to the standard of proof, his Honour erred and should have found that the certificate revealed the blood/alcohol content of the respondent at the relevant time. (4) apportionment: In driving his vehicle in that condition, the respondent's culpability and the causative potency of his negligence were significantly greater than if he had not been affected by alcohol. In all the circumstances, 65 per cent of the responsibility should be apportioned to the appellant and 35 per cent to the respondent: Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. (5) fresh evidence: It is unnecessary to consider the appellant's argument on fresh evidence in light of the conclusion that his Honour erred in his decision relating to the 2 UNREPORTED JUDGMENTS blood alcohol certificate. The fresh evidence sought to be lead goes only to support that conclusion and there is no reason for the court to exercise its discretion to grant a new trial of the issue of contributory negligence. Orders Formal orders not given. Clarke JA Paul Jonathan Blake (the respondent) received very grave injuries when he was involved in a motor vehicle accident on 1 December 1986 on the National Highway at Nectar Brook, which is south of Port Augusta in South Australia. He claimed that the accident was caused by the negligence of Walter Thomas Patmore Norris (the appellant) and he sued to recover damages. The respondent's claim was heard by Hulme J. The appellant admitted liability and his Honour found that the respondent had also been negligent and that it was appropriate to reduce his verdict by 25 per cent on account of contributory negligence. His Honour assessed the total damages at $45,925,725.02. The appellant has appealed challenging both the apportionment and the assessment of damages and he sought to lead fresh evidence on the appeal concerning one aspect of the apportionment. The respondent has cross-appealed challenging the finding of contributory negligence and the apportionment. Because of the complexities of the appeal and the time estimates given by the parties the court determined to separate the issues concerning liability (ie liability and fresh evidence) and damages. This judgment is concerned only with the former. Broadly speaking, the appellant alleged that the respondent had been negligent in driving too fast in the circumstances, failing to keep a proper lookout, failing to respond to an unusual situation on the road and driving while under the influence of alcohol. His Honour accepted that the appellant had established all but the last of those claims. The appellant's challenge to the apportionment is based upon the premise that his Honour erred in concluding that the appellant had not established that the respondent was affected by alcohol at the time of the accident. According to the appellant his Honour ought to have found that, on the probabilities, the respondent had been driving while under the influence of alcohol and consequently ought to have placed a greater responsibility for the accident upon the respondent. The suggestion put forward during the hearing of the appeal was that a proper apportionment was 50:50. In the alternative, the appellant submitted that there was evidence which had come to hand since the trial which falsified the basis of his Honour's finding that the respondent was not affected by alcohol at the critical time. For his part the respondent contended, that his Honour was in error in finding that he had been negligent. Alternatively, he submitted that his Honour had overlooked an important aspect of the appellant's negligence and submitted that if his Honour had given consideration to that aspect he would have made a much smaller finding against the respondent. Because of the monumental size of the verdict and the potential monetary sums involved in any revision of the apportionment the parties examined the evidence and the judgment in minute detail and provided the court with lengthy and comprehensive submissions traversing every conceivable area of their dispute. Before turning to examine the various submissions, and the supporting arguments, I should give a brief outline of the facts. The respondent was an actor who was playing a leading role in a film called "The Lighthorsemen" which was being filmed in the vicinity of Yapala Station. This was about 20 kilometres west of the township of Hawker in South Australia. 1 December 1986, which was a hot URJ NORRIS v BLAKE (Clarke JA) 3 and dusty day at Yapala Station, saw the end of principal filming. When the actual filming ceased in the afternoon of that day the actors provided some drinks for members of the crew to thank them for their efforts during the filming. The respondent remained at the gathering for some time and then returned to Hawker where he had been staying in a motel. There he called in at the production hall to say goodbye to some of the film crew, picked up a red car which had been hired for him, and drove to his motel where he showered, changed and packed his bags. He then drove to a recreation hall, said goodbye to some other crew members, and then embarked on a journey to Adelaide, and then Melbourne. The precise time he left Hawker is not known but would possibly have been in the vicinity of 9pm to 9.30pm. He drove generally in the direction of Port Augusta, which was about 100 kilometres from Hawker and was seen by Ms Conte-Langman and Paul Pattinson, two other crew members, at a service station near Port Augusta about 20 minutes or so before the accident. The respondent then commenced to drive along the National Highway south towards Port Pirie. Meantime, the appellant who was driving an old car, the wiring of which he had performed himself, was travelling north along the National Highway towards Port Augusta. Shortly before the accident he became embarrassed when his lights suddenly went out. The evidence was that the night was dark and the roadway was unlit. The appellant immediately brought his vehicle to a stop. Unfortunately he stopped when the vehicle was facing north but substantially on its wrong side of the road. Very soon after he became stationary a Mr Griffiths appeared on the scene. He was driving his utility vehicle south along the National Highway with his lights on high beam. He saw the appellant's white vehicle stationary, and facing him, on his (ie Griffiths') side of the road. He slowed down and moved to the incorrect side of the road to pass the appellant's vehicle, He performed this manoeuvre without any difficulty and having done so he pulled to his correct side of the road and stopped on the gravel verge somewhere in the order of 50 metres past the appellant's vehicle. At about the time this was occurring the appellant was seeking a small neon light, which he kept in the vehicle, in order that his wife could hold it outside the passenger's side window and assist him to bring his car safely off the road. While he was doing this the respondent's vehicle appeared. The respondent has no memory of the accident and the evidence of what occurred next was given by Mr Griffiths. He said that he saw the lights of the respondent's vehicle approaching the stationary white vehicle and that he first noticed the respondent's vehicle veer to the right. He did not see the respondent's vehicle again, presumably because the white vehicle blocked his vision and of his own actions in shutting his eyes. He next felt an impact between the respondent's vehicle and the tray of his utility. The impact was a very severe one and he was significantly winded. Once he recovered he got out of his car and saw the respondent and his vehicle. There were no marks on the bitumen surface of the roadway to indicate the emergency application of brakes or anything of that nature. There were, however, skid marks on the eastern gravel shoulder of the road indicating a slightly curved path and ending at what was found to be the point of impact between the respondent's vehicle and Mr Griffiths' utility. Those skid marks were in excess of 67 metres in length and commenced at a point opposite where the appellant's vehicle was parked on the western side of the road when the police officer arrived. Following the collision the cabin portion of Mr Griffiths' vehicle finished about 14 metres east of the eastern edge of the bitumen road and about the same distance south of the point of impact. It was then facing north. The tray portion 4 UNREPORTED JUDGMENTS of the vehicle was slightly further south and closer to the bitumen. The respondent's vehicle was found nearly 30 metres south of the point of impact, over 4 metres east of the eastern edge of the bitumen and facing in an easterly direction. Both Griffiths and the respondent were taken to Port Augusta Hospital. The respondent was critically ill. Griffiths was not badly injured and was allowed to leave. Before he left, however, blood alcohol samples were taken from both the respondent and Griffiths. In his very careful and comprehensive judgment the trial judge referred to the fact that the appellant had replaced the wiring of all headlights, tail lights and between the headlights and the fuses after he had acquired the vehicle some years previously. His Honour concluded that he had done so in such an incompetent manner that once one fuse blew all lights went out. His Honour then commented that in the light of his observations concerning the appellant's manner of wiring his vehicle it was 'no wonder the defendant... admitted liability". His Honour then turned to consider the submissions and evidence concerning what might be described as the alcohol issue'. I will return to those observations later in this judgment. At the end of his consideration of that issue his Honour concluded against the appellant and turned his attention to a subject which he described as "speed, breaking and lookout'. In dealing with this subject his Honour observed that in the absence of direct evidence of the occurrence he was obliged to draw inferences from the circumstances of the accident. This was an accurate observation for, while Griffiths saw the respondent approaching, he lost sight of the vehicle before it had passed the appellant's vehicle and had, wrongly, assumed that the respondent had moved onto the wrong side of the road and passed the appellant's vehicle on that side. In fact it would appear from the skid marks, and this was accepted by both parties at the trial and on the appeal, that the respondent had swung his vehicle onto the gravel verge and there lost control of it so that ultimately it struck Griffiths' stationary vehicle. Both parties called experts to give evidence concerning aspects of the accident. His Honour was not impressed by the evidence of either of them and gave reasons for rejecting the substance of the evidence of both. No complaint has been made about this aspect of the judgment. His Honour then said that he was satisfied that the respondent was guilty of contributory negligence and identified the evidence which led him to that conclusion. The important parts of this evidence were identified by his Honour in the following terms: "There is the evidence to which I have referred that Mr Norris' car was visible from 200 metres if Mr Blake's lights were on high beam. Even if this be to overstate the matter somewhat, I am satisfied that visibility was nearer 200 metres than Mr Jamieson's figure of 120 metres. There was a bend in the road but the evidence does not suggest it was other than gradual. I reject the suggestion that Mr Blake was travelling so closely behind Mr Griffiths as to cause Mr Blake to have his headlights dipped. (If he was so close then he should probably have observed at least part of Mr Griffiths' evasive manoeuvres.) The absence of any evidence of another reason for the Plaintiff to have dipped headlights justifies the inference that on the road in question they were not (or there was no need for them to be). Secondly I accept evidence, inter alia, from Dr Moynham that an average. driver's reaction time is no more than one' second. Even if some increase in this should be allowed because Mr Blake was on a, at the time, lightly used country road and his reactions may have been slowed by reason of the circumstance being unusual, he should have reacted no later than 3 seconds after Mr Norris' vehicle URJ NORRIS v BLAKE (Clarke JA) 5 was within view. Assuming Mr Blake was travelling at 110 km/h which was the legal limit he would at the expiration of this time have been at least 100 metres from Mr Norris' vehicle and more than this from Mr Griffiths' vehicle which stopped some distance beyond the Defendant. Thirdly, there is the evidence of Mr Hazel which I accept that he can reduce his car's speed from 130 km/h to 0 in 80 metres without leaving a mark on the pavement. There is no evidence which enables direct comparison between Mr Hazel's vehicle and Mr Blake's but it confirms general experience that car speed can be significantly reduced within what amounts to the length of a football field. Fourthly, though I prefer not to accept the calculations of either Mr Jamieson or Mr Hazel based on the movement of Mr Griffiths' car the conclusions at which they have arrived lend some support for the view that at the time of impact between the two vehicles Mr Blake's car was still moving at a substantial speed. That conclusion is borne out by the distance travelled by Mr Blake's car after the accident and by the extent of damage to Mr Blake's car apparent on photographs tendered. Fifthly, in my view proper regard for his own safety required that, once Mr Blake became aware of the presence of Mr Norris' car, with lights off and on the wrong side of the road, Mr Blake apply his brakes so as to bring his vehicle to a slow speed. That Mr Norris' vehicle must have still been on the wrong side of the road even if it had commenced to move is, I think, to be inferred by the fact that Mr Blake chose to move on to the gravel verge. When one has regard to the evidence to which I have just referred it is apparent that no slow speed was achieved. Whether this was because Mr Blake did not apply his brakes to any significant extent while he was on the bitumen, or was travelling so fast that application of the brakes did not achieve the result which in my view should have been reached, or whether he was not keeping a sufficient lookout to induce him to apply the brakes, I do not know. However, the matters to which I have referred clearly demonstrate to me that Mr Blake must have been at fault in one or more of these respects and seriously so. (Of course, if my conclusion as to the Plaintiff's ingestion of alcohol were incorrect, it would be easy to infer that Mr Blake's conduct in these respects was due to the effect of alcohol but it is unnecessary that I pursue this topic further.) I am not unconscious of the argument that the absence of skid marks on the bitumen and the Plaintiff's avoidance of the Defendant's vehicle, particularly if it commenced to move as Mr Blake approached, is indicative of awareness and control on the part of Mr Blake. I am inclined to agree. However, these matters do not change the conclusion which I have expressed." In dealing with the apportionment his Honour placed most emphasis on the appellant's negligence in the wiring of his vehicle and less on his conduct once he had been plunged into darkness. When he came to consider the negligence of the respondent he said: "On the other hand Mr Blake at the time of his negligence was travelling at high, though not necessarily an illegal speed. Of course it may have been so high that he could not adequately avoid any obstruction, car or kangaroo, on the road. Tf not, it would seem he either chose to venture into a situation of danger at some high speed or did not take adequate steps to protect himself against the possibility of an accident." The appellant submits that his Honour was wrong to reject the contention that the respondent was, at the time of the accident, under the influence of alcohol. The respondent asserts that he was not negligent. In addition he argues that his 6 UNREPORTED JUDGMENTS Honour overlooked the high degree of negligence on the part of the appellant during the time his vehicle was in darkness on the road and, for that reason, made a finding against the respondent which was unduly adverse. Both parties have, therefore, fastened on to errors which they each assert the trial judge made in order to lead to a variation of his Honour's apportionment. In that way, they both seek to circumvent the restraints on appellate courts discussed in Pennington v Norris (1956) 96 CLR 10 and Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. I propose to deal first with the cross-appeal which requires an examination of the circumstances of the accident and then to deal with the appellant's appeal on liability before turning to his application to adduce fresh evidence which is, to an extent, connected with the appeal on liability. In considering these matters I do not propose to descend into the minute detail traversed by the written and oral submissions of both parties. I mean the parties no disrespect by taking that course. Their submissions are extremely detailed and have been most helpful. What is required is a determination whether any of the errors said to have been made by his Honour occurred or, in the case of the respondent's cross-appeal, whether the trial judge had failed to give proper weight to what was said to be the very gross negligence of the appellant once his vehicle had become stationary. It is necessary to refer in more detail to the trial judge's findings of fact. He pointed out that Griffiths had been travelling at between 105 and 110 kilometres per hour prior to seeing the appellant's stationary vehicle and that once he had seen that vehicle he managed to avoid the appellant by a gentle application of the brakes and a swerve to the wrong side of the road. His Honour then referred to the evidence of Griffiths that he saw the respondent's vehicle swerve to its incorrect side and he then saw the appellant's vehicle commence to move. It was at that time, his Honour noted, that Griffiths shut his eyes. The trial judge then turned to consider some photographs and concluded that those photographs, and the distance traversed by the respondent's vehicle after the collision, argued 'for the conclusion that the plaintiff was still travelling at a not insubstantial speed at the time he came into collision...'. Later in the judgment, after dealing with the respondent's ingestion of alcohol, his Honour expressed his lack of confidence in the evidence of the experts, Mr Jamieson called by the respondent and Mr Hazel by the appellant. His Honour did, however, indicate a broad acceptance of Hazel's statement that the stationary white vehicle should have been clearly recognisable as an obstruction by the driver of a vehicle with the headlights on high beam at a distance of close to 200 metres. Having dealt with the evidence of the experts his Honour expressed his conclusions in the passage I have set out earlier. In dealing with the relativity between the appellant's negligence and the respondent's contributory negligence his Honour expressed the view that the appellant could be criticised for his negligence in relation to the inadequate wiring of the vehicle and in failing to take more care to ensure that he stopped the vehicle off the carriageway. In dealing with the negligence of the respondent he said: "On the other hand Mr Blake at the time of his negligence was travelling at high, though not necessarily an illegal speed. Of course it may have been so high that he could not adequately avoid any obstruction, car or kangaroo, on the road. Tf not, it would seem he either chose to venture into a situation of danger at some high speed or did not take adequate steps to protect himself against the possibility URJ NORRIS v BLAKE (Clarke JA) 7 of an accident. While I think that Mr Norris might fairly be described as mainly responsible for the accident in my view Mr Blake's contribution was by no means small. He crashed at no insignificant speed after there had been an opportunity to reduce speed substantially." His Honour's assessment reflects his view that while the respondent's contribution to the accident was by no means minor it was far less than that of the appellant. The respondent challenges the finding that he was negligent. Mr Bennett QC, senior counsel for the respondent, submitted that his Honour erred in preferring the evidence of Mr Hazel to that of Mr Jamieson in concluding that the respondent's range of vision was closer to 200 metres than the figure of 120 metres preferred by Jamieson. The respondent proffered two reasons which, according to his argument, entitled the court to reverse his Honour's factual finding despite the fact that it was based, in part at least, on an assessment of the witnesses. The first was that the evidence of Hazel more closely accommodated Griffiths' evidence that he first saw the Holden when he was about 80-100 metres away and the second was that Hazel had not supported his opinion in a sound manner. For these reasons it was submitted that the primary judge ought to have found that the appellant's vehicle would first have been visible to the respondent at a distance nearer to 120 metres than 200 metres. I am unable to accept this submission. The trial judge indicated a clear preference for Hazel's opinion in circumstances where a great deal of evidence had been led and where his Honour was far better placed than I am to resolve the conflict between the experts. The respondent also challenged his Honour's conclusion that on the probabilities the lights on the respondent's vehicle were on high beam at the time he approached the appellant's vehicle. The argument was based on the fact that the respondent had passed another vehicle only minutes before the accident and that he may have been close enough to Griffiths' vehicle to lead him to keep his lights on what were assumed to be the low beam. In my opinion neither the evidence given as to the passing of the other vehicle minutes before the accident nor the relatively small amount of time which passed between Griffiths becoming stationary and seeing the respondent's lights would indicate that there was any reason for the respondent to have had his lights on low beam. Further, I agree with his Honour that if the respondent was so closely placed to Griffiths' vehicle that he had his lights on low beam he should have seen Griffiths' manoeuvre and the stationary vehicle (lit up by Griffiths' headlights) and these events should have led him to reduce his speed very considerably. This, on any view, he did not do. The major thrust of the respondent's challenge to the finding that he was negligent was based upon what were described as the 'startle effect', and the movement of the appellant's vehicle immediately prior to the accident. An elaborate argument was advanced to the effect that a driver proceeding late in the evening on a relatively quiet country road would have been startled to find a stationary vehicle in the middle of his side of the road. What would have made the scene more surprising was that not only was the vehicle facing towards him but that it started to move as he neared it. The driver, who quite legitimately had been travelling in excess of 100 kilometres per hour, would have been completely startled and the evidence as to the path taken by the respondent's vehicle supported the view that he was reacting to a critical emergency in a reasonably careful manner. I should add that the respondent fastened onto evidence 8 UNREPORTED JUDGMENTS appearing in a statement made by the appellant that immediately prior to the accident he had located a small neon light in the car, connected it to the cigarette lighter plug and had given it to his wife to place outside the near side of the car to guide him across to the side of the road. The sudden appearance of this light would, according to the respondent's submissions, have compounded the confusion of the moment. The respondent submitted that even if the court did not accept that submission, it should take account of it in combination with the evidence given by Griffiths as to the movement of the appellant's vehicle. What must have occurred, according to the respondent, was that the respondent, confronted with the stationary vehicle, moved towards his incorrect side in the same manner as Griffiths had and then, seeing the stationary vehicle also start moving to that side of the road, swerved back onto the gravel verge beside his correct side of the road. In these circumstances the whole cause of the accident was the initial act of the appellant in driving onto his incorrect side when his lights failed, becoming stationary on his incorrect side and then, at a critical moment, moving back towards his correct side. I am not at all certain that his Honour did accept in an unqualified fashion that the appellant moved his vehicle at a critical time. What is perhaps more to the point is that his Honour's findings assumed that the appellant had in fact done so but was still on his incorrect side at the time his vehicle was passed by the respondent. His Honour's reasons for concluding that the appellant's vehicle was still on its wrong side when passed by the respondent seem to me to be sound. In my opinion the clear thrust of his Honour's conclusion that the respondent was negligent was that, having been confronted by a stationary object, he did not take the necessary step of reducing speed to any significant degree but proceeded on at high speed and thereby took undue risks. There are, as it seems to me, some objective facts which are important in a consideration of the present submission. Griffiths was travelling at 105-110 kilometres per hour when he saw the appellant's vehicle. He slowed his own vehicle, without undue breaking, and passed the appellant's vehicle on the eastern side. He then became stationary on the western gravel verge when he was approximately 60 metres beyond the appellant's vehicle. The respondent was following some distance behind and, according to his Honour's finding, should have seen the stationary white vehicle when it was at least 150 metres, if not further, away from him. His Honour's finding was that the vision was closer to 200 metres than 120, but I have deliberately adopted a conservative approach. The road was slightly curving, the land was level and there were no trees or other obstacles to block the respondent's view. Notwithstanding this length of vision the respondent, when quite close to the appellant's vehicle but 67 metres from Griffiths' parked vehicle, drove his own onto the gravel edge. He then skidded for that 67 metres - for part of the time at right angles to the bitumen - and then his vehicle struck Griffiths' utility in a heavy collision. Griffiths' vehicle was pushed generally southward and the respondent's vehicle travelled another 29 metres before becoming stationary. These objective facts provide substantial support for the trial judge's conclusion that prior to leaving the bitumen the respondent was travelling at a high speed. Having regard to the evidence as to the available visibility, and the accepted expert evidence that a vehicle travelling at 110 kilometres per hour can stop in 80 metres, it seems to me there are only two inferences reasonably open as to the respondent's response to the emergency. The first is that he did not see the stationary vehicle until it was too late to reduce his speed to one which was URJ NORRIS v BLAKE (Clarke JA) 9 safe in the circumstances. If this inference should be drawn the respondent failed to keep a proper lookout. The second is that the respondent saw the stationary vehicle when he was a significant distance away from it and decided that he would maintain his speed and move onto the incorrect side of the road at high speed in order to pass the stationary vehicle. Whichever inference should have been drawn, and there is no compelling basis for choosing between them, it is clear to me that his Honour was correct to find that the high speed maintained by the respondent was a significant cause of the accident and reflected a significant departure from the standard of reasonable care. The respondent relied on the same submissions in seeking to argue that the trial judge erred in his apportionment. He also, however, drew attention to the appellant's failure to give evidence and the rather extraordinary statement made by the appellant that he did not see the respondent's vehicle prior to the accident. Mr Bennett submitted that the appellant was grossly negligent in commencing to move his vehicle at the time at which he did. I accept that the appellant was guilty of a high degree of negligence and it is clear to me that his Honour also accepted that fact. It is true that his Honour did not specifically mention the movement of the appellant's vehicle in his discussion on the relativity of negligence with the contributory negligence. That may be because the appellant was on his incorrect side at the time the respondent passed him and Griffiths was not able to say when the appellant commenced to move. However his Honour had earlier referred to the possibility that the appellant moved his vehicle and the finding of 75 per cent responsibility on the part of the appellant is indicative of his Honour's view that the appellant's negligence was of a high order and that he should bear by far the major responsibility for the damage. In considering the question of respective responsibilities I think it important to keep in mind that at all times prior to the collision one vehicle was travelling at very high speed while the other was stationary or moving very slowly. In the circumstance that the vehicle moving at the high speed was the respondent's the finding that was made must necessarily reflect the view that the appellant had been guilty of negligence of a very high order. I would accordingly reject the submission that the contribution awarded against the respondent should be reduced. The appellant also sought a variation of the contributions but on the sole ground that his Honour ought to have found that the respondent was under the influence of alcohol at the time of the accident and I will now deal with that contention. ALCOHOL Within some hours of the respondent's admission to hospital at Port Augusta a blood sample was taken from him by Dr McIntyre, in compliance with his obligation under the South Australian Road Traffic Act. A certificate under that legislation was tendered in evidence. That certificate showed that the sample was taken at lam and the blood/alcohol reading was 0.123 grams of alcohol per 100 millilitres of blood. At the time it was an offence to drive a motor vehicle with a concentration of alcohol exceeding 0.08 grams per 100 millilitres of blood. At the trial the respondent denied that the certificate related to the blood sample taken from him and the issue his Honour had to decide was whether the appellant had established that the certificate did relate to the respondent. After the accident both the respondent and Griffiths were conveyed by ambulance to the hospital. Blood samples were taken from each of them. The certificate relating to the sample taken from Griffiths indicated that his 10 UNREPORTED JUDGMENTS blood/alcohol reading was 0.03 grams of alcohol per 100 millilitres of blood. (That evidence appeared in the police report.) Because these two blood samples were the only ones taken at the hospital that night there was a great deal of attention paid to the procedures leading to the issue of certificates and the appearance of some inaccurate entries in the documents maintained by the hospital. The normal procedure for the taking of a blood sample, as described by Dr McIntyre, involved the removal of a kit from a cardboard box. The kit contained two sample bottles, a syringe, an aqueous chlorhexidine antiseptic, identically numbered labels and a certificate form also bearing the same number. Once the doctor obtained the kit he would draw blood from the patient and insert it into the bottles. The labels were then affixed to the bottles and the certificate filled out. Once this had been done the bottles were commonly given to a member of the nursing staff who attended to the making of an entry in the hospital register. He or she then placed one bottle through an aperture into a locked drawer to which the police had access and gave the other bottle to the patient, or held it for the patient. Dr McIntyre drew the blood from both the respondent, at lam, and Griffiths, at 2.15am, and he wrote out the certificates in respect of each. Although the date 2/12/86 on the certificate relating to the respondent was correctly recorded the doctor had erroneously written the 2nd day of November 19__ at an earlier point in the certificate, which bore the printed number 57083. Dr McIntyre also took the blood sample from Griffiths, and although the blood was taken at 2.15 am, or about 75 minutes after the blood taken from the respondent, the certificate was numbered 57082. His Honour was, however, satisfied that no significance should be placed upon the fact that the Griffiths blood sample certificate bore an earlier number and the reasons which he gave satisfy me that he was correct in his conclusion. The entries in the hospital register were made by an experienced nurse, a Mrs Ferber. It was her practice to make such entries as soon as she received the bottles of blood but, for reasons which she was unable to explain (not surprisingly), the entry relating to Griffiths appeared above the one relating to the respondent. The respondent's case was that the court could not be satisfied that the certificate No 57083 related to the respondent rather than Griffiths. Accordingly his counsel cross-examined Dr McIntyre in order to establish that the doctor could not say with certainty at the time of the trial that the records were accurate. In particular the following evidence was given: "Q. Doctor, today you are not in a position to be able to say, are you, that the right certificate got on the right bottle? A. No, I am not in a position to say that. Q. Is it possible, Doctor, that you took the sample but on each occasion that you took the sample did no more than take the sample and complete a certificate and then leave it to the nurse to allocate the certificates to the bottles and process the samples thereafter? A. Yes, it is quite possible that happened. Q. And if that were to happen, Doctor, it is possible that the wrong sample that the samples became mixed? A. Well you have to remember - I don't think that's likely is the answer - but the reason for my saying that is that the numbers all match, the labels match the certificates and the other thing is there is a 75 minute time difference between the taking of one sample and the taking of the second sample and blood samples are not left lying around for that length of time." URJ NORRIS v BLAKE (Clarke JA) 11 In dealing with the respondent's submission his Honour referred to those statements by the doctor and mentioned two other aspects of the evidence. The first was that there was a very slight possibility that the arm from which the blood sample had been taken may have been swabbed with an alcohol based swab. (This was not relevant to the issue with which I am dealing and, as it is clear that his Honour was not satisfied on the probabilities that the integrity of the sample may have been affected, I will not refer to it again.) The second was that Griffiths gave evidence that before setting out from Roxby Downs at about 7.30 or 8pm he had consumed four stubbies of beer. Dr Dauncey gave evidence that this was consistent with a reading on a blood/alcohol analysis of.03 grams per 100 millilitres of blood. As his Honour indicated there was no cross-examination of either of those witnesses in relation to that evidence. His Honour did not, however, mention this particular aspect of the evidence again nor deal with its significance. Having considered all of this evidence his Honour expressed the view that, notwithstanding the apparent departures from normal practice, he would be inclined to find that the certificate related to the respondent, although not with any great confidence. His Honour then expressed his disinclination to accept the proposition that the circumstances of the accident supported the appellant's case propose on the issue of alcohol and went on to consider the evidence of three witnesses who had seen the appellant prior to his accident. Two, Mr McKenzie, another actor and Mr Wincer, the producer/director of "The Lighthorsemen", saw the respondent in the motel car park at Hawker at which time they considered he displayed no signs of being under the influence of alcohol or of having been drinking. The third witness, Miss Conte-Langman saw the respondent at a service station near Port Augusta about 20 minutes before the accident, at which time he appeared normal and she thought that there was nothing to indicate he was effected by alcohol. His Honour concluded on the issue with these words: "Obviously there was time for the Plaintiff to spend in a bar or over a meal or in other circumstances where alcohol is likely to be consumed and I accept that the smell of alcohol on his breath shows he consumed some and probably some after 9.30. But the extent of the blood/alcohol level attributed to Mr Blake, when extrapolated to the quantity of alcohol consumed, argues in the circumstances as I know them, against him having that blood/alcohol level. If, as I am disposed to do, one accepts the evidence concerning the Plaintiff and his activities up to the time he was seen packing his car and that he was not the type of person to drink while actually driving and concludes that he did not do so, the Plaintiff would have had to consume alcohol at a high rate in the time left to him after making allowance for the time involved in driving from Hawker to arrive at the blood/alcohol reading attributed to him. Notwithstanding the evidence of the blood/alcohol certificate, but bearing in mind the existence of some factors which argue in favour of the possibility of mistake at the hospital, when I take account of all of the evidence on this topic I am not persuaded that the certificate related to the Plaintiff or that he consumed enough alcohol to affect to any significant extent his ability to drive a motor vehicle. I am not persuaded that his consumption of alcohol contributed to the accident or his injuries." The appellant submitted that his Honour erred in failing to conclude that the blood/alcohol certificate applied to the respondent. In making that submission the appellant contended that there was no reason of substance for failing to link the certificate with the respondent and that his Honour was diverted from a true 12 UNREPORTED JUDGMENTS analysis of the force of the evidence by the oral testimony of witnesses who had seen the respondent only for a very short period during the evening prior to the accident. Furthermore, Mr Jackson QC, senior counsel for the appellant, argued that the expert testimony demonstrated that it was quite conceivable that the respondent although affected by alcohol, might not have been under the influence to the extent which would make that apparent to persons having a short discussion with him. The appellant also contended that his Honour erred in his criticism of Dr McIntyre and in his placing undue weight on two apparent concessions by Dr McIntyre which Mr Jackson described as representing no more than a recognition by the doctor of a theoretical possibility that some error may have occurred. Finally, the appellant submitted that his Honour had failed properly to carry out a balanced analysis insofar as he appears to put to one side the consistency between blood alcohol certificate No 57082 and Griffiths' unchallenged evidence. In considering these submissions it is pertinent at the outset to refer to evidence which could not be described as controversial. On the night of 2/3 December 1986 two blood samples were taken at the Port Augusta Hospital - one from the respondent, one from Griffiths. The certificate which formally related to the respondent indicated a blood/alcohol reading of.123 grams per 100 millilitres of blood. The respondent's blood sample was taken at about lam. The other blood/alcohol certificate formally related to a sample taken from Griffiths at 2.15am and was said in the Police Accident Report to indicate a reading of.03 grams per 100 millilitres of blood. Griffiths gave evidence of a consumption of alcohol which according to unchallenged evidence was consistent with the reading that was attributed by the certificate to him. The respondent was unable to give evidence as to his consumption of alcohol and was, therefore, placed in a position of some disadvantage. Nonetheless, as it seems to me, the sample having been taken in compliance with South Australian law and the testing apparently having been regularly carried out, the certificate provided, prima facie at least, evidence that the respondent had consumed sufficient alcohol to lead to the result shown in the certificate and would therefore have been affected by alcohol at the time of the accident. The certificate was not conclusive and it was open to his Honour to find that other evidence in the case should lead to the conclusion that he could not be satisfied that the certificate related to the respondent. The critical question is whether there was material which, as a matter of sound judgment, could properly have led a trial judge to reach the conclusion which his Honour reached. In reaching his conclusion the trial judge took account of the circumstances surrounding the taking of the blood samples in the hospital, evidence that the respondent was not the type of person to drink to excess or to drink and drive and evidence from lay witnesses which his Honour regarded as inconsistent with the conclusion that the certificate related to the respondent. His Honour identified four separate factors emerging from the evidence concerning the taking of the blood samples which, as seems clear, aided him in his ultimate conclusion. Before identifying those it should be said that the system of taking and recording blood samples in the hospital was a simple one. The doctor would take a kit from a box. The kit contained two sample bottles, a syringe, an antiseptic, identically numbered labels and a certificate form bearing the same number as the labels. Blood would be drawn from the patient and placed in the two bottles, the numbered adhesive labels were attached to those bottles and the certificate was then completed by the medical officer. At that time the URJ NORRIS v BLAKE (Clarke JA) 13 name of the patient was put on the certificate. One bottle was placed in the locked drawer and the other held for the patient. Dr McIntyre believed that when he had completed attaching the labels to the bottles and filling in the certificate, he handed the bottles and certificate to one of the nursing staff. During the hearing Dr McIntyre said that he wrote out the whole of the certificate. The respondent did not challenge that evidence nor did it lead other evidence to contradict him. The respondent did, however, point to the four matters to which his Honour referred, and some other aspects of the evidence, in seeking to cast doubt on the proposition that the certificate relating to the respondent was in truth a genuine certificate recording his blood alcohol content at the time. The first matter raised was the absence of the medical officer's signature from the appropriate box in the Casualty and Outpatient Record in which a circle had been placed around the word "yes" in answer to the question "A blood specimen taken?". The second was that the hospital register, which contained details of the samples taken in the hospital, listed Griffiths' sample before that of the respondent and contained no certificate number in respect of the respondent's. As the register suggests, and as was confirmed by the evidence, the relevant entries were made by Sister Ferber. I would accept that those two factors demonstrate a certain laxity, which might be explicable in terms of the workload at the hospital on that night, but taken alone they cast no doubt on the evidence of Dr McIntyre or the conclusion that the certificate related to the respondent. The third matter was expressed by his Honour in these terms: "A further matter to be noticed is that although Dr McIntyre said that both certificates were wholly in his handwriting, the figure '2' where appearing in the entry '2nd day of November' and where first (but not secondarily) appearing in the entry '2/12/86' on form 57083 appears similar to the figure '2' in the entries written by Mrs Ferber in the hospital register and quite dissimilar from the figures '2' on form 57082 and that secondarily appearing in the entry '2/12/86' on form 57083. The disparity within form 57083 was mentioned, but not explored, during the cross examination of Dr McIntyre." The last sentence is accurate insofar as it conveys the notion that Dr McIntyre was not challenged on his statement that he wrote the whole certificate. In these circumstances the suggested differences in the writing of the figures "2" provides no basis for doubting the accuracy of Dr Mclntyre's evidence. The fourth factor identified by his Honour were two answers in which Dr McIntyre made apparent concessions. However, those answers need to be understood in context. During cross-examination the following exchange, which includes the answer on which his Honour relied, took place: "Q. And Doctor, could it be that the label was placed on the bottle by someone other than you? A. No, absolutely not. Q. You see, could it be that the labels were filled out by you later during the night? A. Labels are not filled out. The labels have only one thing on them, that is the number which corresponds to the number on the form. Q. Yes, I'll put it another way. That the certificate that you signed - the two certificates were signed by you later during the night? A. No, I'm sorry. It is my practice when taking a blood alcohol sample - I am aware of the importance of blood alcohol and the legislation, I may not be au fait with the details of the legislation but I'm nevertheless aware that it is highly important and it gets done 14 UNREPORTED JUDGMENTS and gets done correctly. It is my practice to put the blood in the bottles myself, having taken the blood myself, to seal the bottles and then to fill in the certificate immediately and then the rest. Q. Doctor, today you are not in a position to be able to say, are you that the right certificate got on the right bottle: A. No, I am not in a position to say that." [The question is inaccurate.] And later: "Q. Is it possible, Doctor, that you took the sample but on each occasion that you took the sample did no more than take the sample and complete a certificate and then leave it to the nurse to allocate the certificates to the bottles and process the samples there after? A. Yes, it is quite possible that happened. Q. And if that were to happen, Doctor, is it possible that the wrong sample that the samples became mixed? A. Well, you have to remember - I don't think that's likely is the answer - but the reason for my saying that is that the numbers all match, the labels match the certificates and the other think is there is a 75 minute time difference between the taking of one sample and the taking of the second sample and blood samples are not left lying around for that length of time. Q. This was an abnormal night, wasn't it? A. No this was certainly an abnormal night for Mr Blake, it was an abnormal night for me; as far as the casualty staff are concerned they are used to having heavy nights with road accidents and major illnesses, people coming in sick, that's what accident and emergency departments are about." (In his judgment his Honour said that the transcript was incorrect and that the doctor actually said "it was not an abnormal night for me".) It is true that the doctor recognised the theoretical possibility that the labels could have been placed on the wrong bottles. However, as it seems to me, his answers demonstrate that it was highly improbable that this occurred on that night for the reasons given by the doctor and his earlier evidence that his practice was to label the bottles himself. The respondent relied on two other aspects of the hospital documentary records. His Honour, quite correctly in my view, considered that those aspects cast no doubt on the blood alcohol certificates. The first was that the certificate relating to Griffiths had a lower number than that relating to the respondent although it was taken later in time. His Honour pointed out that there was no system whereby kits were taken from the cartons in any particular order and that it was merely fortuitous that the lower numbered was taken out second in time. The second was the appearance in the register of the entry relating to Griffiths prior to that relating to the respondent. Not surprisingly Sister Ferber, who made the entries, was unable to recall why that happened. It does not seem to me it has much to do with whether the labels were put on the correct bottles by Dr McIntyre. A simple explanation is that Sister Ferber wrote them both up at the one time and did not concern herself with which she put in first. Having regard to the contents of the kits it is clear to me that if Dr McIntyre followed his usual practice and affixed the numbered labels to the bottles and then wrote out the certificate the latter must have related to the respondent. Like the doctor I am unable to deny that the possibility existed that, for some inexplicable reason, the doctor did not affix the labels to the bottles in accordance with his usual practice. But even if he had not done the attaching himself but had handed the bottles and the labels to a nursing sister to perform that act for him it is difficult to understand how the labels relating to the blood sample taken at 1 am could have been affixed to the bottles concerning the samples taken 75 minutes URJ NORRIS v BLAKE (Clarke JA) 15 later. Similarly it seems highly unlikely that a certificate written out by the doctor at lam could have ended up with the samples taken 75 minutes later. Like Dr McIntyre I could not exclude the theoretical possibility that a mishap occurred but it seems to me that the chances that it did occur are minimal. His Honour seems to have formed a similar, but less confident, view. Nonetheless, having regard to those of the evidence which caused him to hesitate and the evidence of persons who had seen the respondent earlier he felt constrained to find against the appellant on this issue. His Honour accepted the evidence of those witnesses as must this Court. Unlike his Honour I do not find it compelling on the issue with which I am dealing. Both Wincer and McKenzie saw the respondent, possible between 8 and 9pm while he was packing his car. To their observation he was not affected by alcohol but they each saw him at that time for no more than a few minutes. Likewise Miss Conte-Langman saw him for a couple of minutes at the service station near Port Augusta and she saw nothing untoward in the respondent's conduct. The brevity of the meetings between the respondent and these persons couples with the evidence that some persons may not appear to be affected after having consumed considerable quantities of alcohol lead me to conclude that little weight could be placed on that evidence as in some way throwing doubt on the authenticity of the certificate. His Honour also relied on what he described as "a matter of common experience", that is, that it is not likely that someone would embark on a long drive after consuming the amount of alcohol suggested by the certificate. While this is a reasonable view it does not seem to me that it is particularly relevant to the issue under consideration - that is, whether the certificate related to the respondent. In the way his Honour approached the issue it was not one which depended upon an assessment of the credibility of witnesses, other than those who saw the respondent before the accident. Rather it involved a consideration and evaluation of a number of matters which were said by the respondent to cast doubt upon the authenticity of the certificate. In essence the resolution of the issue involves a matter of judgment on which this court is, subject to its acceptance of his Honour's findings regarding the evidence of particular witnesses, in as good a position as his Honour was to reach the conclusion. For my part I would respectfully disagree with his Honour. On its face the certificate related to the respondent. Unchallenged evidence was given as to the practice followed by the doctor in taking blood samples and that evidence strongly tended to prove that the certificate did reliably record the respondent's blood/alcohol level at the relevant time. The omissions and mistakes in the records to which our attention was drawn do no more than show a certain laxity in record taking. They do not, in my opinion, reflect in any significant way upon the accuracy of the certificate or the likelihood that the bottles contained the right labels. Finally the evidence of the eye witnesses, while demonstrating that the respondent was not at earlier times visibly affected by alcohol, is not capable, in my view, of throwing any real doubt upon the likelihood that the certificate related to the respondent. Having regard to the standard of proof (on the balance of probabilities) I would conclude that his Honour erred and that he should have found that the certificate revealed the blood/alcohol content of the respondent at the relevant time. I have reached that conclusion upon the basis that there was no specific identifiable error in his Honour's approach to the question. For my part I think that there was. In my opinion his Honour failed to analyse, and place sufficient weight on, one aspect of the evidence which was important and which tends to support the conclusion that I have reached. There were two blood samples taken 16 UNREPORTED JUDGMENTS during the early hours of 3 December. One related to the respondent and one to Griffiths. If the labels were transposed then it would follow that the certificate with the reading of 0.123 grams per 100 millilitres of blood related to Griffiths. Yet there was unchallenged evidence that Griffiths had consumed a quantity of alcohol which was markedly inadequate to lead to that reading. On the contrary the quantity of alcohol which he had consumed was consistent with the reading on the other certificate and there is nothing in the evidence, or in the way the case was fought, which would provide a reason for disregarding this factor. Further there is nothing in the evidence which would support the conclusion that Griffiths had consumed more alcohol than he conceded. In particular the evidence concerning the manner in which he drove his vehicle, as opposed to the evidence relating to the respondent's management of his vehicle, strongly suggests that Griffiths was in total control of his vehicle at all relevant times. Certainly it provides no support for the view that he had driven while affected to a significant degree by alcohol. As I have said his Honour did no more than advert to this evidence which provides positive support for a conclusion that the certificate was an accurate record of the respondent's blood/alcohol content. Yet it was important evidence which was relevant to the issue and could not be disregarded. It was a factor to be weighed in the evaluation process yet his Honour seems, substantially, to have disregarded it. The issue with which his Honour was faced was whether, on the probabilities, the blood/alcohol certificate related to the respondent. With the greatest respect to His Honour I have come to the conclusion that the correct finding is that it did. The consequence is that not only has it been shown that the respondent drove his vehicle negligently but that he did so while he was under the influence of alcohol to a significant degree. Another consequence is that his Honour has failed to take account of a material factor in weighing the contributions of the parties. Mr Jackson QC submitted that, in the event that the court accepted his submission that the respondent was driving under the influence, the apportionment should be radically altered and he submitted that it would be appropriate to apportion 50 per cent contribution to the respondent. While I would not agree with the division proposed by him I do accept that the finding I have made does require the reconsideration of the apportionment. That must follow because the finding is relevant both on culpability (ie, the degree of departure from the standard of care of the reasonable man) and causative potency (see Podrebersek (supra) at 494; Pennington (supra) at 16). The evidence demonstrates that a person who has drunk enough alcohol to lead to a blood/alcohol reading of 0.123 grams per 100 millilitres will almost certainly be significantly impaired in his capacity to drive a motor vehicle. The alcohol affects the driver's ability to judge speed and distance and it impairs cognitive and information processing abilities. In the light of that evidence it must, in my view, be accepted that, in driving his vehicle while in that condition, the respondent's culpability and the causative potency of his negligence were significantly greater than if he had not been affected by alcohol. The making of an apportionment cannot, however, be an exact science. So much is recognised by the authorities I have mentioned and the expressed difficulties of appellate courts to interfere in an apportionment by a trial judge in the absence of demonstrated error. Notwithstanding the factor of alcohol, I remain of the view that the appellant should bear the greater responsibility. In this respect I have regard to those matters which I earlier mentioned and, in particular, the negligence of the appellant in starting to move his vehicle in apparent disregard of the appellant in URJ NORRIS v BLAKE (Clarke JA) 17 starting to move his vehicle. In all the circumstances I am disposed to the view that 65 per cent should be apportioned to the appellant and 35 per cent to the respondent. FRESH EVIDENCE The appellant sought to lead evidence which he contended was not available to him at the hearing. During the hearing of the application a great deal of oral evidence was given by witnesses called by both the appellant and the respondent. The broad import of the evidence which was given by the appellant's witnesses, and which formed the basis of the appellant's application for a new trial, was that the respondent had drunk a considerable quantity of beer at the wrap party held following the completion of principal filming. The evidence led by the respondent was designed to show that he had not drunk a significant amount of alcohol and that he was not visibly affected by alcohol at the time he set out on his journey to Adelaide. The appellant submitted that in the special circumstances of this case it had established special grounds within the meaning of s75A(8) of the Supreme Court Act 1970 and that the court should, in the exercise of its discretion receive the further evidence and grant a new trial. Mr Jackson submitted that the decision in Nyerlucz v Dei Rocini (NSW Court of Appeal, 8 September 1995, unreported) established that there could be no defined test by which the court admitted fresh evidence. In each case the decision depended upon whether the court found that there were special grounds, a phrase which was incapable of more precise definition. Notwithstanding, Mr Jackson accepted that the tests referred to in Council of the City of Greater Wollongong v Cowan (1955-56) 93 CLR 435 were relevant to a determination whether special grounds existed. In summary those tests require that this court be satisfies as to whether the fresh evidence could, with reasonable diligence, have been produced at the hearing, whether it would, with the appropriate degree of probability, have affected the outcome of the trial and whether the evidence was credible. He submitted that the fresh evidence would almost certainly have affected the outcome of the trial. It is unthinkable, he submitted, that his Honour would have reached the conclusion expressed in his judgment on the issue relating to the blood/alcohol certificate if the evidence which is the subject of the application had been led at the trial. He explained to the court the different ways in which his Honour's approach to that issue would have been affected by that evidence. It is unnecessary, in my opinion, to delve into the intricacies of the argument in the light of my conclusion that his Honour erred in his decision relating to the blood/alcohol certificate. The consequence of my conclusion is that the certificate related to the respondent and established that he was affected by alcohol to a significant degree at the time of the accident. The evidence which Mr Jackson now seeks to lead goes only to support that conclusion. For instance, it was not argued that the evidence would establish that he was more affected by alcohol than the certificate would suggest. The sole basis upon which the evidence was advanced was to demonstrate that his Honour's conclusion in relation to the certificate was wrong. The consequence of my reversal of his Honour's decision on this aspect means that the fresh evidence would have no real effect and there is, accordingly, no reason for the court to exercise its discretion to grant a new trial of the issue of contributory negligence. In these circumstances there is no point in carrying out the academic exercise of analysing the evidence and examining whether, in the light of that analysis, the various tests by which it is usually determined whether special grounds have 18 UNREPORTED JUDGMENTS been established have been satisfied. My earlier conclusion resolves the application against the appellant upon the ground that he could no longer establish that the evidence would have a significant effect on the outcome of the trial. For these reasons I would allow the appeal, dismiss the cross appeal, set aside his Honour's apportionment and in lieu thereof order that liability be apportioned 65 per cent to the appellant and 35 per cent to the respondent. Handley JA I agree with Clarke JA. Sheller JA I agree with Clarke JA. Appeal allowed, cross appeal dismissed. His Honour's apportionment set aside and in lieu thereof liability is apportioned 65 per cent to the appellant and 35 per cent to the respondent. Counsel for the appellant: DF Jackson QC, CRR Hoeben SC and S Climpson Solicitors for the appellant: Ferguson Holz Counsel for the respondent: DMJ Bennett QC, RF Margo and A Spencer Solicitors for the respondent: TD Kelly and Co