KHAN v MOFFITT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and COLE JJA 5 November 1997, 5 November 1997 [1997] NSWCA 176 Motor vehicle accident — credibility issue — unsuccessful challenge to adequacy of trial judge's reasons — no question of principle Mason P This appeal challenges a verdict for the defendant found by his Honour Judge McLachlan. It concerns an accident that occurred in July 1993 when the appellant, the plaintiff belong, was struck as a pedestrian as he crossed Botany Road, Mascot. It is common ground that he was struck by a car being driven by its owner, the respondent. The plaintiffs proceedings were a claim for damages for injury to his right foot and consequent orthopaedic disabilities affecting his right leg. In an extempore judgment given by his Honour Judge McLachlan, the trial judge noted that he had two days to consider the claim. He did not relate all of the arguments put by counsel although he mentioned some of them. This was a classic case involving a single central credibility issue. The plaintiffs version of the accident was that he crossed at a pedestrian crossing, having left the roadway when the "Walk" sign was showing; and that he walked at a normal pace quickening the pace when he saw the pedestrian sign start to flash "Don't Walk". His evidence was that he was struck before he reached the other side by the defendant's vehicle which, on his evidence, must have come through a red light to have hit him. The plaintiffs evidence at trial was that he was struck on the right foot, which was the foot that was on the roadway at the time of the accident. The plaintiff produced at trial his right shoe and pointed to its damaged condition as corroboration of the fact that it was the right foot that was injured. (The forensic purpose of this is fairly evident because the defendant, when he reported the accident to the police, had said that he hit the unidentified pedestrian in the left foot. The plaintiffs counsel tendered the P4 report prepared in the light of the defendant going to the police.) Reverting to the plaintiffs evidence at trial, his case was that people came to him. They left him after observing his injured condition. At that time, according to the plaintiff, his right shoe was on the ground near him and he picked up the right shoe and limped home. His evidence was that nobody came to him and identified himself as the driver of the vehicle which struck him. Indeed, his case was that the vehicle which struck him drove off. The plaintiff did not report the accident to the police station but gave an explanation for this based upon his ignorance of the law. Eventually the plaintiff reported the matter to the police a little over a month later, having received legal advice in the intervening time. 2 UNREPORTED JUDGMENTS In cross-examination the plaintiff adhered to his version of the accident which, if accepted, would have led clearly to a verdict in his favour. He was confronted with the defendant's version of the accident which was to the effect that he crossed in excess of one hundred metres to the south of the pedestrian crossing, but the plaintiff adhered to his case. The defendant, in his evidence, said that he was a courier/driver who had driven for 25 or 26 years. There were three lanes each way in Botany Road and the traffic was heavy and he was driving in the lane nearest the gutter going north. He said that he came to the intersection of Botany Road and Gardeners Road with the light red. He was slowing down at a position where there were at least four cars ahead of him in his lane waiting for the light to change. The other two lanes were banked up mainly with trucks and heavy vehicles. As he was approaching the traffic lights, "this body just appeared and ran across the road in front of one of the large semi-trailers, that's what happened straight across in front of me". He identified the position as being south of an MMI Credit Union sign which was identified in a photograph. On the defendant's version of the accident it was clear that the responsibility for the accident rested with the pedestrian. Although Mr Gross submitted to the contrary, it appears clear to me that that version, if accepted, negated negligence on the defendant's part. The defendant, in his evidence, said that he pulled up immediately, put on the flashing lights on his vehicle and ran back to assist the gentleman whom he had stuck. He, the defendant, picked up a shoe off the street and put it back on the plaintiffs foot. He said that the shoe was a brown slip-on shoe which was torn at the side. His evidence was that the injured pedestrian did not respond when questioned nor when the shoe was put back on his foot. The defendant waited for about five minutes asking questions but getting no response. He saw the pedestrian walking around on the footpath, up and down. Believing that the pedestrian was not seriously injured and, not being able to get any response from him, he decided to leave. He went straight to the police station and reported the accident. The P4 form, which was put into evidence by the plaintiff and which the defendant accepted recorded his version of the accident as reported that day, gave the location of the accident one hundred metres south of the intersection of Gardeners Road and Botany Road, therefore clearly south of the pedestrian crossing, and gave the version consistent with the defendant's evidence that he later gave at the trial. The defendant was cross-examined about his version of the accident but adhered to it in all substantial respects. He did, in cross-examination, repeat his evidence given in chief to the effect that it was the right foot that had the missing shoe which he, the defendant, put back. The defendant was confronted late in his cross-examination with the evidence that indicated that he had informed the police constable that it was the left foot of the pedestrian that had been struck. He accepted this inconsistency and he endeavoured to explain it based upon a lack of recollection. It was put to the defendant that he had struck the plaintiff and he had just driven on without stopping. He denied that. The defendant was confronted with his own driving record and it was suggested squarely to him that he feared (with good cause) that a conviction for a driving offence would cause him to lose his licence and his livelihood. His URJ KHAN v MOFFITT (Mason P) 3 response was that it never occurred to him that this particular accident put his licence in jeopardy. He considered the suggestion that the accident occurred on the level crossing as "a joke". The trial judge recounted the competing versions of the accident and noted that there were no other witnesses. In the course of describing the plaintiffs evidence, he noted a view that the plaintiff was not a particularly impressive witness. In the course of recounting the defendant's evidence, his Honour adverted to the cross-examination of the defendant based upon the suggestion that he did not stop because he knew that he would lose his licence if he stopped. It is clear that his Honour had regard to that cross-examination in forming his own assessment of the credibility of the defendant. As I have said, this is a classic credibility case, and the appellant faces the daunting task of establishing appealable error in accordance with the principles summarised in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 where, in the joint judgment of Brennan Gaudron and McHugh JJ, their Honours said: "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 side because an appellate court thinks that the probabilities of the case are against even strongly against that finding off act. 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". I am entirely unpersuaded that the appellant has made good an attack confronted with these principles. I think that Mr Gross in his detailed submissions and oral submissions has said all that possibly can be said for what, frankly, is an impossible appeal. Mr Gross has focused his attack upon two main points. He submitted that there were procedural miscarriages in the trial in that the trial judge did not provide adequate reasons for his decision and that there was a denial of natural justice in relation to his handling of the defendant's identification at trial of the plaintiffs shoes. Secondly, Mr Gross challenged the specific grounds given by the trial judge for his preference for the defendant. I do not believe either of these challenges has been made good. On the question of adequacy of reasons, this Court has to be careful lest an overly scrupulous insistence upon detailed reasoning forces busy trial judges to reserve judgments where a concise statement of reasons is adequate. In the present case the trial judge gave various reasons for preferring one version to another. It is also a situation where, as the High Court has said on a number of occasions, the so called subtle influence of demeanour is something that a trial judge isn't always able to put his or her finger on but nevertheless takes account of in assessing credibility issues. There were, in my view, adequate reasons to sustain the judgment. The second procedural matter raised by Senior Counsel for the appellant was the submission that there was a denial of natural justice in the making of the defendant's identification at trial of the plaintiff's shoes one of the grounds of the decision of the trial judge. This is a reference to the passage at 197 of the Appeal Book where the trial judge asked himself the question, "How was the defendant so readily in the witness box able to identify the plaintiffs shoes including the 4 UNREPORTED JUDGMENTS damage to one of them if he did not stop and attend to the plaintiff as he alleges?". His Honour clearly, although sub silentio, answered the hypothetical question in the defendant's favour. In my view the trial judge was entitled to resort to this method of reasoning, although in my own mind it is not a terribly compelling reason. Nevertheless it is not an irrational reason for finding the defendant's evidence preferable to that of the plaintiff. After all, the defendant had given evidence in chief and in cross-examination that he had picked up the torn, damaged shoe and put it back on the plaintiffs foot. The important part of that evidence was that it, if accepted, established that the defendant stopped at the scene of the accident, which is inconsistent with the plaintiffs evidence that the person that struck him had driven off. The defendant was asked by counsel for the plaintiff whether he recognised the shoe and he said he did. It was not suggested to him that that recognition was based solely upon the events that occurred in the court or perhaps in the preceding arbitration. The fact that the defendant had the opportunity to see the shoe in court does not necessarily establish that he did not answer truthfully when he said that he had also seen the shoe at the scene of the accident. If that was his evidence then the trial judge was entitled to accept that evidence and to reason as he did, in my view. Turning to the substantive attacks upon the trial judge's expressed reasons for preferring the defendant to the plaintiff, the trial judge attached significance to the fact that the defendant went straight to the police station and reported the accident. It was submitted that this was self-serving conduct with no probative value. I disagree. True, it was the defendant's legal obligation, but it must be remembered that the issue that seems to have been uppermost in the submissions was the suggestion that the defendant had not stopped, but just driven straight off. On that version the defendant may very well have not had any cause to fear that he would be identified. There certainly was not any suggestion on the plaintiffs evidence that he had identified the defendant as the driver. The trial judge was, in my view, entitled to consider and reject the cross-examination designed to show that the defendant acted cynically and as a means of saving his licence. Having rejected that explanation for his conduct, he was entitled, in assessing the credibility of the defendant's version, to weigh in the balance the fact that the defendant had promptly reported the accident, thereby corroborating his credibility. So the case then comes back to one where there are two competing versions. The defendant's version, having been accepted in a manner which does not expose itself to any appellate review, I would reject the alternative argument of the appellant that that version did not sustain the finding in the defendant's favour. The defendant's version of the accident clearly, if accepted, was inconsistent with negligence and entitled the trial judge to enter a verdict for the defendant. In my view the appeal should be dismissed with costs. Meagher JA I agree. Cole JA I also agree. Mason P That is the order of the Court. Appeal dismissed with costs. URJ KHAN v MOFFITT (Mason P) Counsel for the appellant: Mr Gross & Mr Marks Solicitors for the appellant: Gells Counsel for the respondent: Mr K P Rewell Solicitor for the respondent: Glllis Delaney Brown