NSW INSURANCE MINISTERIAL CORPORATION v HILL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, SHELLER JA and COLE JA 26 June 1996 [1996] NSWCA 393 LIABILITY — motor vehicle accident — no question of principle. Clarke JA. I shall ask Mr Justice Cole to give the first judgment. Cole JA. The appellant contends that at the trial before his Honour Judge Nash, at which a verdict was entered for the respondent in the amount of $78,746, there was a miscarriage of justice. It is argued in written submissions that the trial judge's findings on liability should be set aside and a verdict entered for the appellant; or alternatively that the respondent should be held guilty of contributory negligence, although this was abandoned on appeal; or alternatively that there should be a new trial, which was the position adopted in oral argument. The circumstances giving rise to these submissions are as follows: The respondent was injured when involved in an accident on 31 March 1985. A motor cycle on which he was riding was then travelling in an easterly direction along Parramatta Road, Ashfield, when it collided with the rear of another vehicle travelling in the third lane from the kerb, Parramatta Road at that stage having three lanes in each direction. The vehicle with which the motor cycle collided was stationary. The respondent alleged that he was previously travelling in lane two when an unidentified motor vehicle travelling in lane one suddenly, and without warning, changed into lane two, causing the respondent to take evasive action by swerving immediately into lane three whereupon he struck the rear of the stationary vehicle. At the hearing before Judge Nash the plaintiff gave evidence to the effect that I have mentioned. The defendant, however, contended that the respondent's account was a fabrication. The contention was based upon a workers compensation claim form dated 4 April 1985. The claim form stated: I was travelling along Parramatta Road in the centre lane. The weather was very thick with fog. I put my right hand blinker on to change into the right hand lane when all of a sudden there was a vehicle stopped, waiting for the vehicle in front of him to make a right hand turn. I tried to avoid the collision by sliding my bike on its side, but it ended up near the rear of the vehicle, thus causing the injury to my right leg. No mention was made in the statement of any unidentified motor vehicle causing a sudden emergency, resulting in the respondents swerving into lane three and thus striking the stationary vehicle. The respondent was asked whether the signature on the claim form was his, and he said it was, although he could not remember signing it. The signature was witnessed by one Keith Bell, a fellow employee, who gave evidence that he visited the respondent in hospital on 4 April 1985 and confirmed that the signature was his. As the trial did not take place until 1993, it was not surprising that Mr Bell could not recall his actual witnessing of the respondent's signature. 2 UNREPORTED JUDGMENTS On 11 April 1985, eleven days after the accident and seven days after the date of the workers compensation claim form, the respondent gave an account of the accident to the police officer, not dissimilar to that given in evidence. After the close of the plaintiffs case the defendant called evidence from the driver of the stationary vehicle, who said there were a number of stationary vehicles in lane two and also in lane one. The defendant also called a roster clerk from the Long Bay prison complex, where the respondent had worked, and who was referred to on the claim form as being the person notified of the accident. It also called Mr Keith Bell who said he had placed his signature on the claim form when he visited the respondent on 4 April. After the conclusion of the appellant's case in the trial court, the respondent called Mrs Hill in reply. She gave evidence that the signature of Mr Hill on the workers compensation claim form was, in fact, written by her, and that she had made up and written out the account of the accident on that form. She said she did not get the information to complete the form from Mr Hill, although he had mentioned the existence of a truck to her. She said that whilst he was in hospital, at least up to 4 April, he was in extreme pain and in a drugged condition. She gave evidence that she had taken the claim form to the prison complex and there had been told the name of the prison officer referred to on the claim form, to whom she had reported the accident, and accordingly had inserted his name, and it was there that she met Mr Bell, who took her to collect the respondent's pay and there signed as witness to the signature of the claimant on the claim form. She had not seen the claim form in the intervening eight years until it was produced to her husband in the witness box the day before, and she had first seen the form on the morning on which she gave her evidence in reply. In the witness box she wrote the name 'G Hill' in the manner in which her husband wrote his signature to demonstrate to the trial judge that the signature on the claim form was, in truth, one which she had written as she said. The trial judge accepted the evidence of Mrs Hill to which I have referred. The appellant contends that the trial was unfair because, by calling Mrs Hill in reply, the respondent both split his case and contradicted his own evidence in chief. The course of the trial resulted in none of Mrs Hill's assertions being put to Mr Bell. If her evidence was correct, his evidence that he signed the form at St Vincent's Hospital was wrong, but was unchallenged, and it was not put to him that, in truth, he signed it at the prison when it was brought to him by Mrs Hill. It was contended that the trial judge should have rejected the evidence of Mrs Hill or required Mr Bell's reattendance for further cross examination. The trial was thus said to be unfair and to have miscarried based on three matters: First, that Mrs Hill's evidence should not have been received in reply; second, that a comparison of the document showing Mr Hill's true signature and that written by Mrs Hillin the witness box and that on the claim form, did not lead to the finding which his Honour made that the claim was, in fact, signed by Mrs Hill; and thirdly, that there was a failure of the trial judge, as it was put, to permit Mr Bell to be cross examined regarding his signature as a witness. All of these matters may have been proper objections at the trial, had they been taken, but they were not. Mr Bell was not required to re-attend nor was any application made for an adjournment for that purpose. No objection in substance URJ NSW INSURANCE MINISTERIAL CORPORATION v HILL (Clarke JA) 3 was taken to the course of the trial. The reality was that the appellant acquiesced in the manner in which the trial was conducted. It is now too late to complain of the trial process. It was argued that the trial judge should not have accepted Mrs Hill's evidence. Acceptance or rejection of her as a witness and the substance of her evidence was a matter for the trial judge. It was further said that the trial judge's comparison of the signatures on the claim form with the admitted signatures of the respondent and the signatures made by Mrs Hill in the witness box, should not have resulted in a finding that it was Mrs Hill, not Mr Hill, who signed the claim form. This Court was invited to do the same comparison exercise. Having done so I would not depart from the trial judge's finding in this respect. In my opinion nothing has been advanced sufficient to justify disturbing his Honour's acceptance of Mrs Hill and her evidence. Once that evidence was accepted, the challenge to the respondent's account given in evidence, based upon inconsistency with the workers compensation claim form, necessarily failed. As I have said the ground in respect of contributory negligence was abandoned at the hearing. There are two remaining grounds: One related to what is said to be the wrongful admission of evidence. However, even if the evidence was wrongly admitted, no miscarriage of justice was able to be indicated to this Court. The trial judge, after careful consideration, accepted the version of the accident given by the respondent. The cause of the accident was thus that the actions of the unidentified motor vehicle in unexpectedly moving from lane one to lane two forced the respondent to veer sharply into lane three, giving the respondent no prospect of stopping before colliding with the stationary vehicle in that lane. Thus negligence on the part of the unidentified motor vehicle was established. In my opinion each of the points put on appeal fails and the appeal should be dismissed with costs. Clarke JA. I agree. Sheller JA. I also agree. Clarke JA. The order of the Court will be that the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: R F Sutherland Solicitors for the appellant: Doran Roberts and Co Counsel for the respondent: P W Neil Solicitors for the respondent: NSW IMC