DOWZARD PTY LTD v STOCKS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, PRIESTLEY and POWELL JJA 1 April 1996, 2 April 1996 [1996] NSWCA 159 Negligence — liability — whether appeal court able to interfere with trial judge's finding on credibility Negligence — liability — whether appeal court could interfere with trial judge's findings on credibility — head on collision between motor cyclist carrying a pillion passenger and a car — motor cyclist exceeding speed limit — car being lawfully driven — motor cyclist took curve on the wrong side of the road — immediate admissions by plaintiff motor cyclist that accident his fault — motor cyclists case that motor cycle malfunction sent him to the wrong side of the road — motor cyclist sued company which allegedly repaired motor cycle's brake negligently — trial judge accepted evidence and credibility of plaintiff and awards damages — defendant appealed on liability — challenge to trial judge's factual conclusions and whether adequate reasons were given in judgment — principal question whether the trial judge had been correct in accepting that motorcyclist had been on the wrong side of the road immediately before and at the time of the accident was due to bike's defect. Held: per Priestley JA, Mahoney P and Powell JA agreeing: the trial judge did not err in being persuaded by the credibility and evidence of the plaintiff. The evidence in question did not fall within any of the circumstances or situations as defined by the High Court in Devries therefore the Court of Appeal was not entitled to interfere with findings of the trial judge properly based on his findings of credibility. Abalos v Australian Postal Commission (1991) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 ORDERS Appeal dismissed with costs. Priestley JA This case is about an accident that happened on 13 December 1979. It shows how wide the reach of negligence has become. A man riding a motor bike with a pillion passenger was going faster than the speed limit along a suburban street. When taking a curve he went on to the wrong side of the road and head on into a car being lawfully driven in the opposite direction. The bike rider and his passenger were badly injured. Immediately after the accident and then a little later in hospital on the same day and then again some weeks later the bike rider said "the accident was definitely my fault". These would seem to be rather unpromising facts for the obtaining of damages by the bike rider and indeed, he did not try to get damages from anyone for nearly six years. But shortly before the six year time limit ran out he started proceedings as plaintiff in the Supreme Court against, as defendant, the Company he got the bike from. Further, when his case came before Grove J in 1993, that Judge found the defendant liable to the plaintiff and assessed damages at $110,022. Grove J also found the plaintiff's contribution to the accident made it just and equitable to reduce damages by 25 percent. He entered Judgment for the plaintiff for $82,517. 2 UNREPORTED JUDGMENTS The defendant appealed, saying the Judge should not have found the defendant liable at all. The appeal was confined to liability. No question was raised concerning damages or the apportionment based on the contributory negligence. Although I have mentioned ie delay by the plaintiff in starting his proceedings I do not think it is relevant to ie substance of his case because what was the starting point of his claim was mentioned by the plaintiff to the police very shortly after his accident. This is recorded by Grove J in his reasons for Judgment as follows - "On 7 January 1980 detectives interviewed the plaintiff whilst he was still an in-patient at Prince of Wales Hospital. The record of interview reveals the same candour which I observed whilst the plaintiff was giving evidence. art of the exchange was as follows: 'Detective Sgt Murray. Q11. Would you care to tell me your version of how the collision occurred? Plaintiff A. I was coming from Maroubra along Elphinstone Street. I went to go around a bend in the road. Because of cars parked along the footpath I went a little bit wider than normal. I don't exactly know what happened but I felt a tug on the bike, but I can't remember whether that was before or after 1 crossed to the other side of the road. I know that I was exceeding the speed limit. I was doing about 80 kilometres per hour.' At interview the plaintiff told police that he had no idea what the tug might have been. I do not think that he had really contemplated it and I consider the injuries sustained by himself and Mr Preece and the hope of recovery would have been to the forefront of any deliberation that he undertook at about that time. Charges were preferred against him. Although it may not have then occurred to the plaintiff, the possible significance of the tug which he felt occurred to others and, fortuitously, Professor Jack Phillips a mechanical engineer was consulted as the result of intervention by solicitors acting in the criminal proceedings. " The matter in what the plaintiff then said to the police which later was dealt with in detail at the trial, was, as his Honour indicated, what the plaintiff said to the police was the "tug" he had felt on the bike immediately preceding the collision. Dr Phillips was consulted in June 1980. As a result of his investigation of the cause of the tug the case eventually presented by the plaintiff before Grove J was to the following effect. On 5 December 1979 the plaintiff dealt with the defendant, which traded under the name of Mentor Motors, and came away with the motor bike which was involved in the accident some eight days later. It is not necessary to explain the details of the transaction pursuant to which the plaintiff obtained the bike from the defendant because the cause of action which succeeded before the trial Judge did not depend upon the contractual relationship between the parties but on an allegation of negligence which was the second claim relied on in the plaintiff's case at trial. On riding the bike in the days following 5 December 1979, the plaintiff noticed some malfunctioning which he associated with the brake. On 12 December 1979, he went to the premises of Mentor Motors and told a mechanic there of the problems he had been experiencing with the bike. The mechanic made what was referred to as an adjustment to the brake mechanism. It was this adjustment which was later said to have been done negligently and which eventually the Judge accepted as having been done negligently and as having been causative of the accident. URJ DOWZARD PTY LTD v STOCKS (Priestley JA) 3 The next aspect of the plaintiffs case was the accident itself which took place on 13 December. It is most simply described in the words of the plaintiff in his examination in chief: "Q. What is the next thing you noticed? A. Well I started going to the corner and I was actually into the bend of the road and all of a sudden it felt like someone kicked the back wheel from under me and gave me a shove. I was on the wrong side of the road and, bang, I spotted a car there. I hit it. Everything happened so quick. One second the car was not there, one second later it was. Q. In order to negotiate the left hand bend what were you doing about your weight, the position of your body? A. Following the leaning of the bike, leaning with the bike. Q. Which way? A. Left. Q. When you say the bike straightened up, what do you mean? A. Well it seemed, it was just leaning like that. All of a sudden I got a shock the back went like that. Q. The bike stood up vertically? A. Yes. Q. From the left hand leaning position? A. Yes. Q. You travelled in a straight line rather than a curve? A. Yes, I don't know how far it actually travelled in a straight line but I don't think it was very far. Q. Before that feeling of the wheel being kicked out from the back of you - where was the cycle in relation to the centre line of the road? A. About 2 foot in from the centre line on the left hand side of the road. Q. After it straightened up where did it travel? A. Straight across to the middle of the other lane until I got stopped by the other car. Q. How far away was the other car when you first saw it? A. In front of me, directly in front of me." The final ingredient in the plaintiff's case before the trial Judge was the evidence of Dr Phillips. Between 1964 and 1986 he had been an Associate Professor in Theory of Machines at the University of Sydney. His qualifications seemed to be high and directly relevant to the subject matter of the evidence which he gave. Grove J set out the core of his opinion. He first referred to Dr Phillips' opinion that a defect in the bike's brake system was causative of the accident and then conveniently and in my opinion accurately, summarised that opinion as follows: "Tt had effect in this fashion. The rear brake was dragging with a consequent increase in power extraction to reach desired speed; at the critical time both occupants of the machine were appropriately left leaning to make a curve when the brake - because it was defective - released and the cycle suddenly accelerated and moved tangentially to the bend and directly into the path of the oncoming car. This behaviour of the cycle - contrary to the control being exercised upon it by the plaintiff - happened by reason of the convergence of the various physical forces described by Dr Phillips in his report and evidence." The trial Judge accepted the plaintiff's evidence. This evidence varied in a number of respects from what the plaintiff had said in the immediate aftermath of the accident. The trial Judge, however, began his reasons by saying that he wanted to record his favourable finding on the issue of the credibility of the plaintiff. He referred to a lengthy cross-examination and said that an impression of honesty was powerfully conveyed by the plaintiff. The trial Judge rejected the arguments of the defendants questioning the credibility of the plaintiff. 4 UNREPORTED JUDGMENTS The trial Judge also accepted the evidence of Dr Phillips. This led to the critical holding in the case to the following effect: "It is more probable than not that the tug he felt" - I interpolate that "he" refers to the plaintiff was the surge of power upon the brake being released and that in the circumstances this is likely to have occurred whilst he was negotiating the bend regularly, that is to say before crossing the separation line." Having accepted the plaintiff and also the explanations of Dr Phillips, his Honour found for the plaintiff against the defendant because of the negligent treatment of the brake when it had been taken to the defendant's premises on 12 December 1979. The defendant's grounds of appeal, as dealt with in the defendant's written submissions, fell under two main heads. One was that trial Judge's fact finding had been wrong. The other was that the trial Judge had failed to give adequate reasons. These two heads on the facts of the case are closely connected. In the oral submissions to this Court the arguments were put principally under the first head. The whole question raised by these arguments was whether the Judge had been right in accepting that the reason for the plaintiff having been on the wrong side of the road immediately before and at the time of the collision was the behaviour of the brake resulting from its faulty and improperly repaired condition. In attacking the Judge's factual findings on this topic, counsel for the defendant was well aware of the difficulties that he faced by reason of the credibility of the plaintiff having been a matter relevant to the decision and one upon which the Judge had made very explicit rulings. The difficulty faced by appellants attacking such factual findings has been stated a number of times in the High Court in recent years, perhaps the clearest statement being in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, in the joint reasons of Brennan, Gaudron and McHugh JJ: "More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." (References omitted) Counsel for the defendant sought to bring the position in the present case under one or other of the rubrics listed by the High Court in that passage by submitting that there were six matters appearing plainly in the evidence which all combined to show that the Judge's conclusions were so clearly wrong that they had to be set aside. The first of these six matters was what was submitted was the unchallenged evidence of the driver of the vehicle with which the plaintiffs bike collided. That driver, Mr Carroll, had made a statement to the police not long after the accident which was tendered in evidence before Grove J. In one paragraph Mr Carroll said "IT came around the corner where the unbroken yellow line is and I then saw the motor bike come around the corner. He was right across the yellow line on my side of the roadway. He was right in the middle of my lane. I don't know what speed he was doing but he was travelling very fast. There was nothing I could do. URJ DOWZARD PTY LTD v STOCKS (Priestley JA) 5 I didn't even have a chance of applying my brakes. I just saw him come around the corner and then he hit the front of my car. " This evidence was unchallenged in the sense that no direct questions were asked of Mr Carroll in cross-examination by counsel for the plaintiff on the opening two sentences of the quoted paragraph. There was some cross-examination by reference to photographs of the curve in the road where the accident had happened. That cross-examination taken together with what is shown in the photographs supports the view which is clear enough in any event from the final four sentences in the quoted paragraph that there must have been very little space and time for the driver of the car to form any clear idea of how it came about that the motor bike had got on to the wrong side of the road and that the final sentence in the paragraph has quite a ring of realism, that is, "I just saw him come round the corner and then he hit the front of my car." The defendant relied heavily on the opening sentences of the quoted paragraph. Based on those sentences it was submitted that what Mr Carroll was saying, or at least necessarily implicit in his evidence, was that the motor bike was on the wrong side of the road and that there was no basis for saying that it had been impelled into that part of the road as a result of something happening with the brake, or the brake release on the motor bike, causing it to surge from the proper side of the road to the incorrect side of the road. I do not think that the paragraph relied on bears the weight that the defendant seeks to put on it. What the defendant has to persuade the Court of, in view of the authorities like Devries, is that it is quite impossible or if not quite impossible, so very unlikely that the account given by Mr Carroll in his statement can stand together with the acceptance of the plaintiffs evidence that the two cannot as a matter of reason, stand together, and then that the Court would conclude from the unchallenged nature of Mr Carroll's evidence that the trial Judge was bound to accept it and therefore bound not to accept the plaintiff. I do not think that the defendant has been able to make good such a sequence of propositions in regard to Mr Carroll's evidence. The concluding part of the paragraph that I have quoted to my mind cuts down to a considerable extent anything that can be inferred from the opening part of the paragraph about the accuracy of Mr Carroll's observations and the obligation of the Court at trial to accept from that paragraph that it supplied positive evidence that nothing along the lines of what the plaintiff spoke about immediately prior to the accident had happened. The inconsistency, even assuming that Mr Carroll and the implications from his evidence were to be accepted 100 per cent, does not seem to me to be of such a kind as to have necessarily obliged the trial Judge to find in the way that it is contended for or for this Court to set aside his acceptance of the plaintiff. The second item of evidence was a statement from a lady named Smith who saw the accident. She was not available for examination or cross- examination and thus the Judge had only her written statement before him. It, in my opinion, did not deal with the matters of fact about which it was necessary for the witness to have said something before the kind of conclusion which the defendant was asking to be drawn from her statement could be drawn. The defendant's argument in regard to her statement was essentially the same as that in regard to Mr Carroll's statement, the difference being that her statement was less detailed and gave less foothold, in my opinion, for the kind of implication to be drawn from it that the defendant was contending for. 6 UNREPORTED JUDGMENTS The third matter of fact was evidence from a lady named Peak. Her evidence was also in statement form before the Court and she was not able to give oral evidence either. The content of her statement was made the subject of a similar argument as that of the statements of Mr Carroll and Ms Smith. The same reasons, in my opinion, apply to her statement for not drawing from it what the defendant seeks to have the Court draw from it. The fourth matter of fact was actually a number of matters relating to what the plaintiff had said in the immediate aftermath of the accident. I have already mentioned that he said, on the day of the accident and again later, that the accident was his fault. Such admissions are powerful pieces of evidence in a trial and have to be weighed up by the trial Judge along with all the other evidence. If the Judge has the person who made the admissions before him, has the opportunity of hearing him give evidence leading to a different result from that which the admissions would prima facie take a Court to, hears him cross-examined on all the relevant material and concludes that he is telling the truth, so that the Judge then accepts him, then there is nothing particularly untoward or unusual in such a factual finding. Of itself, it furnishes no reason for overturning the trial Judge's conclusions. The other item under this fourth heading, was that at a formal interview with the police which was recorded, the sentence was included: "T don't exactly know what happened but I felt a tug on the bike but I can't remember whether that was before or after I crossed to the other side of the road. I know that I was exceeding the speed limit. I was doing about 80 kilometres per hour." Again, that evidence was useful to the defendant at the hearing but the same remarks that I made in regard to the more direct admissions apply to it also. That is what he said to the police on 7 January 1980. What he said to the Judge in his evidence in 1993 had improved his case in that he changed from not being able to remember whether he felt the tug on the bike before or after he crossed to the other side of the road, to being, not dogmatically, but tentatively, prepared to say that it happened when the bike was on the correct side of the road. The Judge would be as conscious as anyone, of the difficulties a witness may encounter when his evidence changes in regard to a significant matter in such a way as the plaintiffs evidence changed. But having that in mind, and one can be sure that he was reminded of it in addresses, the Judge was persuaded by the impression the. plaintiff had made on him, that the evidence he gave before the Court should be believed. That is peculiarly the province of the trial Judge unless one of the situations listed by the High Court in Devries can be plainly seen to have been operating at the time. I do not think that this piece of evidence brings into play any of the matters mentioned in Devries as entitling a Court of Appeal to interfere with a credibility finding. The fifth matter relied on by the defendant was the fact that the plaintiff did not call his pillion passenger as a witness. This again is a matter which was to be taken into account by the trial Judge but the fact that he came to a conclusion adverse to the defendant, cannot be said to be vulnerable because of this particular matter. It is only one of the many matters the Judge had to consider in deciding the question of credibility. The sixth item relied upon was what was said to be the unsatisfactory evidence of both the plaintiff and Dr Phillips. I don't think I need to say anything concerning the criticisms of the plaintiff's evidence. They all fall within the area that I have already been discussing. The trial Judge heard the plaintiff's account. URJ DOWZARD PTY LTD v STOCKS (Mahoney P) 7 It was not a fantastic or inherently incredible account and looked at simply by itself, it was something it was open to the trial Judge to accept. The evidence of Dr Phillips was criticised on various grounds and the principal one, as I understood it, was that there simply was not a sufficient factual basis in material eventually proved in evidence and accepted by the Judge for Dr Phillips properly to have founded his opinions upon. Once however, the position is reached where the plaintiff's evidence is accepted, and in particular the evidence I earlier quoted of his own account in examination-in-chief of the way in which the accident happened, there does seem to me to have been a sufficient foundation for Dr Phillips's opinions. When that is taken into account and the reports of Dr Phillips which seem to me to be detailed and careful and the also detailed and careful cross-examination from which, as I read it Dr Phillips emerged with his opinions intact in the sense that he had not been prevailed upon to alter them in any substantial way and had given consistent reasons for maintaining them and in view also of what seemed to me to be his high technical qualifications, I can see no reason why it was not open to the Judge to have accepted the substance of his opinions. I have dealt with each of the six areas relied upon by the defendant individually. I should mention that the submission for the defendant was that it was the cumulative effect of these six areas of fact which brought the case within the area where this Court could interfere with the factual findings of the trial Judge. However, in going through each of the six matters, some of them to my mind disappeared altogether as elements of the argument. Others lost some of their strength. I do not think that the six aspects, when properly assessed, can in their aggregate, lead to the conclusion the defendant wants the Court to reach. On the factual challenge to the trial Judge's conclusions therefore, my opinion is that the defendant's appeal fails. I mentioned earlier that there was also in the written submissions the question raised of whether the Judge had given sufficient reasons. Once the facts are understood in the way in which I think they should be understood then it seems to me that the way in which the trial Judge reached his conclusion is quite plain to see from the course of his reasons. This second head of appeal was not pressed in terms in the oral submissions. My view is that had it been, it also would have failed once the first submission failed. The two heads really were very much connected and if the challenge to the factual findings failed then the other matter also, in my opinion, would be bound to fail. I would therefore propose that the appeal be dismissed with costs. Mahoney P I agree with the Judgment of Priestley JA. Two things were apparent in the case. First that the other driver, the driver of the motor vehicle was not at fault, and the second, there was no doubt that the cyclist at the point of impact was on his wrong side of the road. In that context the essential question was why was he there. If he was there simply because of bad driving, then it was arguable that the defect in the bike did not cause the accident and so the present defendant was not liable to the plaintiff. But if he was there because of the defect in the bike then the defendant could be liable. The plaintiff had said that he was there because of the defect in the bike and the way it had sent him across to the wrong side of the road. The Judge accepted the plaintiff as a witness of credit in this regard. Therefore, if the defendant was 8 UNREPORTED JUDGMENTS to succeed it had to go behind the Judges finding and the plaintiff's evidence; the defendant had to establish that there was another reason why the plaintiff was where he was. At least he had to counteract the effect of the plaintiffs evidence in this regard. Mr Graves was faced with, as I shall describe it, the Abalos principal. He tried to show that the Judge was wrong in accepting the plaintiff as a witness of truth. He referred, as Priestley JA has said, to the evidence of the two ladies and the other driver. There were discrepancies or possible discrepancies in the evidence as a whole which required to be reconciled. One thing that was suggested - I take it by way of example - was that their evidence could be explained consistently with the plaintiff's evidence upon the basis that when they saw him on the wrong side of the road, the defect in the bike had already operated to send him there. If that be so, then their evidence was not inconsistent with his evidence that he'd been sent to the wrong side of the road by the defect in the bike. I agree in this regard with what has been said by Priestley JA. So far as the adequacy of the judge's reasons is concerned, in this case the Court has, as it always does, done counsel the courtesy of reading what they have written in their written submissions. But, when the reasons of the Judge are read, and the context of the case is understood, it is in my opinion plain to demonstrate why the Judge decided as he did. In my opinion, the orders to be made should be those proposed by Priestley JA. Powell JA I am content to join in the orders proposed by Priestley JA on the simple ground that although the various matters to which Mr Graves referred in the course of argument, provided powerful arguments to seek to persuade the trial Judge to a view contrary to that to which he came, they did not, in my view, constitute facts established incontrovertibly, nor did they establish that the version of the facts, accepted by Grove J was glaringly improbable. Mahoney P: The orders of the Court are therefore those proposed by Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: J Graves Solicitors for the Appellant: Dunhill Madden Butler Counsel for the Respondent: PR Glissan Solicitors for the Respondent: Ashton Stedman