SWINBURNE v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NSW) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and POWELL JJA 29 October 1997, 29 October 1997 [1997] NSWCA 302 Evidence — Prospectant — "Presumption" of continuance — Whether available in instant case Mason P The appellant appeals against a verdict for the defendant entered by his Honour Judge P R Bell. The appellant's claim is for damages for injuries sustained in an accident which occurred early in the morning of Good Friday 17 April 1987. In the preceding evening the appellant had been at a hotel where he met a woman whom he had known casually for some years, a Ms Thompson. After much drinking they met up with a group of motor cycle enthusiasts at some club premises in Middle Lane, Randwick. At some time early in the morning, although how early is a matter of some confusion and debate, the appellant set off with Ms Thompson on a motor bike going up Middle Lane and turning right into Middle Street, Randwick, heading east. Near the intersection of Barker Street and Perouse Road, Randwick, the motor cycle struck a brick wall, having mounted the kerb. Both the appellant and Ms Thompson were injured, the appellant more seriously than Ms Thompson. The case appears to have been fought solely on the issue of who was the driver and who was the passenger of the motor bike. The trial judge found in the ultimate that he was not persuaded that the appellant was the passenger. The appellant had no recollection of the circumstances of the accident itself and gave no evidence on that matter. He was not challenged about this lack of recall. It was, however, his evidence, and it was supported by the evidence of a witness named Mr Halbert, that when he and Ms Thompson left the premises at Middle Lane Ms Thompson was the driver and he was the passenger. The evidence about the ownership of the motor bike in question is in a very unsatisfactory state except that one can say it did not belong to either of those two persons. The learned trial judge accepted Mr Halbert as an impressive witness and, therefore, found that when the two left the premises in Middle Lane the driver was Ms Thompson. If this remained the situation at the time of the crash then, as the case was fought, a verdict for the plaintiff would have followed. His Honour posed himself the question of asking whether the plaintiff had established that he remained in the position as a pillion passenger at the time the impact took place. The place of the accident was approximately four to five kilometres from the location of the club premises. There was no submission at trial, nor in the appeal, to the effect that it was not open to the trial judge to infer from the evidence about the motor cycle when it left Middle Lane, that that was the situation at the time of the accident. This is a classic application of the presumption of continuance. 2 UNREPORTED JUDGMENTS Without applying the presumption that way there would have been no evidence at all in the plaintiff's favour and yet the trial judge appeared to proceed on the basis that there was such evidence. I will come back to the question of the weight of the evidence after I address the way the trial judge approached the matter. His Honour said that had the evidence rested as he found it (namely with the conclusion that the plaintiff left the club as pillion passenger and the conclusion that the plaintiff and Ms Thompson were both at the accident site immediately after the accident) he would be satisfied on the probabilities that the plaintiff had established he was the pillion passenger. However, the judge took into account three further pieces of evidence which I will mention in a minute and concluded that the three matters of evidence "do combine, in my mind, to raise such a probable question mark as to who was actually the rider of the motor cycle at the time, that on the balance of probabilities I am unable to determine who was in control of the motor cycle." (AB 288) The conclusion of the trial judge did not turn upon any assessment of credibility, at least no stated assessment of credibility. As I have said, the appellant did not purport to have any recollection of the circumstances of the accident and he was not challenged on this. I now turn to the three pieces of evidence which the trial judge took into account as displacing the impact of his earlier findings. The first was a record of a statement in a police officer's notebook appearing at AB242. It records the statement made by the appellant when interviewed in hospital by a police officer. He said: "T went out drinking Thursday night and I went to a party that night and I noticed that it was daylight so I thought Id leave. All I remember is hopping on the back of the bike and then waking up in hospital on Saturday." The evidence continues: "Q. Who was the driver of bike? A. I wouldn't even have a clue. I don't even remember anything. Q. Where was the party at? A. I don't even know. Q. Who were the people you went with? A. Some Moiri(sic) people I met at the White Horse Hotel, Kingsford." His Honour did not say what it was about this material that he considered assisted the defendant's case. It may be that he was inferring that the appellant was lying in his answers about who was the driver or his lack of knowledge about the location of the party and proceeding from an implicit finding that he was lying he moved to a process of concluding that this indicated a consciousness of guilt in the sense that the appellant knew that he was the driver and that he wished to suppress this from the police officer. It is well established in the context of criminal law cases that this process of reasoning is open but fraught with danger and requires a jury, if a jury is involved, to be clearly instructed about the possibility that people may lie for reasons other than indicative of guilt. Since his Honour did not express his reasoning and since I am not persuaded that the reasoning was indicative of an intention to lie carrying admission of guilt, I see nothing in this first piece of evidence that supports the respondent's case; indeed, the initial answer supports the appellant's case albeit it simply involves the appellant corroborating himself. Having regard to the antecedents of the (GRVINBURNE v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OB NSW) (Mason P) (Mason P) appellant I can see reasons why he would not want to cooperate with the police simply because he was that sort of a person. The second matter relied upon by the learned judge were notes in the same police officer's notebook recording a statement made by a now deceased gentleman, Ron Flavell, who was a tow-truck driver who came upon the accident scene. The relevant part of the note, which is at p280, said: "T got there and I saw a Moiri(sic) girl running up to me upset and she said we' ve had an accident and they've taken the rider away in the ambulance. She had blood on her arm and around her fingers." Ms Thompson was Maori and it is quite clear that this purports to record a statement she made to Mr Flavell. Since it was recorded in a police notebook it is capable of being admitted as a business record. However, I would accept the statement of counsel for the appellant that the recorded statement cannot be used to bolster the respondent's case basically for two reasons, the first is in the particular context the expression "rider" is sufficiently ambiguous so as to preclude one reading the statement as referring to rider in the sense of driver as distinct from passenger. The second reason is that the particular statement asserting that it was "the rider" that had been taken away was clearly hearsay because Mr Flavell would not have been at the site when the accident occurred and his statement to the police officer, though recorded in the business record, cannot have evidentiary effect if the point is taken beyond recording admissible material, some of the material was admissible but the use his Honour made of it in determining who was the rider was in my view not permissible. (See Harrison v Wilson (1985) 2 Motor Vehicle Reports 385.) The third piece of material relied upon by the trial judge consisted of portion of the report prepared by an ambulance officer who came on the scene and who treated the appellant. It is clear from other evidence that at the time the officer came on the scene Ms Thompson had already been taken to hospital. This partially explains why the only person treated and referred to in the ambulance report was the appellant himself. The report was prepared by Mr Adams who did not give evidence, although an associate paramedic, Mr Wilkinson, did. At the end of the day Mr Wilkinson did not have any personal recollection of what had been said. Nevertheless, the statement in the ambulance report is capable of speaking with evidentiary effect. Insofar as one can infer that what it purports to record is a statement by the appellant. The relevant part of the history that is recorded states: "Male patient rider of motor cycle, lost control, up over gutter hitting brick wall." It is also relevant that the same report records the officer's opinion that the patient had a level five level of consciousness which means that in the assessment of that officer this patient was speaking sensibly. In my view this piece of evidence was capable of being taken into account by the trial judge as evidence of a statement made by the appellant and as a statement potentially inconsistent with the case the appellant was putting. Whilst the word rider standing alone carries an ambiguity of which I have spoken, the context of the particular statement which refers to loss of control does not suggest that the author of this statement used the word rider in the sense of driver. Nevertheless, this is a piece of evidence but only one piece of evidence that requires to be weighed together with the other evidence and this brings me back to the evidence based on the presumption of continuance. 4 UNREPORTED JUDGMENTS The place of the accident was, as I have said, about four kilometres away from where the journey started. Of course, it does not follow that the journey on the motor cycle went straight to the place of the accident. There are questions about the time at which the journey commenced compared to the time of the conclusion of the journey as recorded in the ambulance report which do raise issues which unfortunately were not explored at the trial. It may be that vagueness due to the fact that all of the relevant witnesses were probably quite intoxicated is a factor. It has been suggested in argument that the presumption of continuance loses all of its force or most of its force because of the inability to infer that the cyclists went straight from Middle Lane to the place of the accident. Whilst others may be of a different view, I think that this is an inference that is open and to reject it is to engage in speculation rather than a process of logical inference that would lead to a lessening of the presumption of continuance. After all, it was Ms Thompson who was in control of the motor bike when the journey started. The location of the accident was approximately due east of the place where the journey started and Mr Halbert gave evidence that the cyclist did turn east when she left Middle Lane. I would also think that there is some support from the fact that the journey whilst not by any means being the most direct route was approximately en route for the intended destination of the intended assignation. The fact it may not have been the most direct route maybe is indicative of the inebriated or exhausted state of the driver rather than as tending to prove that the parties were not going en route to the stated destination. It is a matter of weighing up the strength of two competing pieces of evidence. I am of the view that the trial judge was not entitled to have any regard to two of the three matters he relied upon. Balancing the two remaining matters in contention I would find that the scales of probability are weighed in favour of the appellant. For that reason I would uphold the appeal and enter a verdict in the sum that the trial judge indicated he was prepared to have entered had he found in favour of the plaintiff. Because of my approach to the matter it is not necessary to consider whether the trial judge erred in rejecting the additional piece of evidence being a statutory declaration made by Ms Thompson. For these reasons I would uphold the appeal. Powell JA This is an appeal against a Judgment delivered, and Orders made by Bell DCJ when sitting in the District Court at Moruya, on 2 June 1995, on which day his Honour entered a verdict for the present Respondent in proceedings which had been brought by the Appellant against the Respondent. and ordered the Appellant to pay the Respondent's costs of the proceedings. In those proceedings the Appellant had sought to recover damages for injuries which he claims to have sustained in a motor cycle accident which seems to have occurred at about 8am in the morning of Good Friday, 17 April 1987. Quite apart from the fact that, on the hearing before Bell DCJ the Appellant was unable himself to give any direct evidence, and that he was also unable to tender any other direct evidence, of the circumstances in which the accident is said to have occurred, there were other aspects of the proceedings which, in my view, made the Appellant's claim a bold, if not an overly ambitious, one. The Appellant, who in about mid-1985 had come to this country from New Zealand, where he had been born, and who, at the time of the accident, was about twenty-seven years of age, was a panel beater by occupation, then living in premises at Surfside Avenue, Clovelly on the north side of Clovelly Beach. \RVINBURNE v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OB NSW) (Powell JA) (Powell JA) According to the Appellant, after he had finished work on Maundy Thursday, 16 April 1987 he left the premises of the Supreme Smash Repairs garage at Bondi where he worked and went to the White House Hotel which seems to be an hotel situated in Anzac Parade, Kingsford, not far from Doncaster Avenue, Kingsford and the University of New South Wales. The hotel appears to have been one frequented by New Zealanders. Having arrived at the hotel where he said he remained drinking beer until about closing time - which one assumes would have been around 10pm - the Appellant commenced upon a drinking bout of heroic proportions. According to the appellant one of those whom he met that evening at the hotel was one Ruth Thompson, a fellow New Zealander, apparently of Maori extraction, and a distant relative of one John Halbert, to whom I will later refer. Ms Thompson was a woman, so it would seem, the appellant had known and with whom he had socialised on a casual basis both in New Zealand and Australia over a period of some five years. According to the Appellant, when he left the hotel he, in company with Ms Thompson, and seemingly, with others, went to some premises in Middle Lane, Kingsford, which lane appears to be but a short distance from the hotel, and which premises were occupied by what has been described as "a motor cycle club" but not "a bikie club." There, subject only to switching from beer to whisky, the Appellant continued with his drinking bout. It was somewhat delicately put to the Appellant during the course of his examination in chief that at the party he and Ms Thompson "progress(ed) towards a closer relationship", the nature of which relationship is made a little more clear when it is recorded that the Appellant said that he had invited Ms Thompson, and Ms Thompson had accepted the invitation, to spend the weekend with him in his home at Clovelly. It is a measure of the Appellant's state of sobriety at the time - although I think an overly bold assessment on his part of that state - that although he said that he was drunk, the Appellant also claimed that he was in full control of himself and what he was saying. Be that as it may, that was his state of sobriety as the evening progressed and the early morning hours of Good Friday arrived. In the course of his evidence in chief the Appellant said: "... [remember seeing Ruth and leaving with Ruth. It was in the very early or the late hours of the morning, the sun was rising, I can remember the sun coming up and I know from memory that it was very, that the party was all night and it had gone right on through the whole night and right through to early next morning " a description which suggests that the time when the Appellant and Ms Thompson left the motor cycle club was somewhere of the order of 6 o'clock, or a little more or less, in the morning. That that is not an overly simplistic view of the evidence is made clear by the fact that a little later in his evidence, when dealing with the question of what happened immediately prior to his leaving, the Appellant said: "... it was still dark in the lane, I didn't even pay much attention to the motor cycle. " The evidence of Mr Halbert, who is the other witness to whom the President has referred in the course of his Judgment, was that shortly before Ms Thompson and the Appellant left the motor cycle club, Ms Thompson asked him for the loan of a motor cycle helmet and that it was the motor cycle helmet which he provided which was then given to the Appellant to wear. 6 UNREPORTED JUDGMENTS Despite the fact that the appellant recalls having been given the helmet he, in the course of his evidence, said he could not even remember putting it on, although he remembered having it in his hand. Be that as it may, the fact would seem to be that Ms Thompson later mounted the motor cycle which she had obtained from somewhere and the appellant then mounted the pillion seat behind her. It is quite clear from the evidence that although it is said that Ms Thompson drank very little during the night, there was quite an animated scene accompanied by people waving, cheering and yahooing as the two set off down Middle Lane on their journey. That was the last the Appellant could remember until, as the President recorded, he claims to have awoken in hospital the following day. The accident is said to have occurred near the intersection of Barker Street and Perouse Road, Randwick, an intersection which, although in a generally Easterly direction from Middle Lane, involved the motor cycle having turned South and not Northward, which would have been the correct direction in which to turn if Ms Thompson and the appellant had been proceeding in the direction of Clovelly. With great respect to what the President has said as to the suggested direction in which Ms Thompson and the Appellant were travelling, it seems to me that not only was the direction which has been suggested in the course of argument not even the most direct route to Clovelly, but that it was a most extraordinary route for anybody who wanted to go to Clovelly to travel in. Be all that as it may, the fact that the accident is said to have occurred shortly before 8am on Good Friday, coupled with the earlier evidence to which I have referred as to the time at which, as it would appear, Ms Thompson and the Appellant set off on their assignation, in my view totally destroys the basis for any presumption of continuance. The distance between the motor cycle premises and the scene of the accident is comparatively short. The time involved to travel such a distance, one would have thought, would have been only of the order of minutes if Ms Thompson and the appellant had proceeded to that location directly, whereas the time which appears to have elapsed between the time when Ms Thompson and the Appellant left the premises and when the accident occurred appears to have been no less than an hour and probably far more. At the trial the Appellant, in addition to giving such evidence as he was able as to what had occurred up to the time when he and Ms Thompson left Middle Lane, tendered the evidence of Mr Halbert. While that evidence provided support for the evidence of the Appellant that Ms Thompson was the rider, and he the passenger, when they left the premises of the motor cycle club, it provided no other support for the case which the Appellant was seeking to make out. In the course of his evidence in chief the Appellant gave evidence that, in about September of 1987, at which time he had retained the services of a Mr John Sloan, then a solicitor of this Court, to act for him in relation to the accident, there was obtained from Ms Thompson a Statutory Declaration which was marked for identification at the time when the Appellant gave his evidence. Later the Appellant's counsel sought on several occasions to tender that Statutory Declaration in reliance upon the provisions of s14B of the Evidence Act 1898. At first, the tender was not pressed but, ultimately, after Mr Sloan had given evidence as to the circumstances in which he claimed to have obtained the Statutory Declaration, and at the conclusion of the Appellant's case, the tender was pressed. His Honour rejected the tender primarily upon the basis that, in his view, Ms Thompson was "a person interested" within the meaning of the provisions of s14 of the Act and that for that reason, if for no other, the tender \RVINBURNE v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NSW) (Powell JA) (Powell JA) ought to be rejected. At the same time, however, his Honour indicated that, if he had been pressed to express a view on the matter, he would not have been disposed to think that the ground for the admission of the Statutory Declaration, namely that there had been reasonable efforts to locate Ms Thompson, had been made out. It is, perhaps, convenient to record what was the substance of that Statutory Declaration since it bears upon the question whether, even if his Honour were in error in rejecting it, his failure to admit it would have led to such a miscarriage of justice as would, without more, have entitled the Appellant to have the appeal upheld. It was in the following terms: "1. On Thursday 16 April 1987 I attended a party at Middle Lane, Kingsford. 2. At about Sam on Friday 17 April 1987 I was leaving the said party to go home and was asked by a person known as Grant Swinburne to give him a lift to his place of residence at Clovelly. 3. I had already borrowed the keys to motor cycle registered number AY896 and said to Grant Swinburne that he could ride as a pillion passenger. 4. I recall riding the motor cycle and trying to negotiate a corner turning from Chatham Street into Carrington Road, Randwick when I lost control of the motor cycle and it mounted the footpath in Carrington Street. 5. The next thing I recall was being back at the party and noticing that I had cuts and abrasions to my body. " The significance of that Statutory Declaration lies in the number of aspects of the present case. The first is that it would appear that, even if it were not so in the original Statement of Claim filed on behalf of the Appellant, it was certainly so in the Further Amended Statement of Claim filed on his behalf that the Appellant asserted that the accident occurred in one or other of two alternative sites: the first, in Perouse Road, Randwick near the intersection of Barker Street and the second at or near the intersection of Chatham Street and Carrington Road, Randwick, which is some distance to the North of the first location which latter location, if I may say so, would be more likely to be the site of the accident if the parties had in fact proceeded in the direction of the Appellant's home at Clovelly. The next matter to be observed is that Ms Thompson asserts that it was at about 5am on Good Friday when she was leaving the party to go home that she was asked by the Appellant to give him a lift to his place of residence. If that were the correct time, the problem to which I have earlier referred in relation to the presumption of continuance is made even more acute. The third matter is, of course, that, if the Statutory Declaration were admitted into evidence, it would have contradicted the evidence which the Appellant had given as to the assignation which he claims to have made with Ms Thompson and it would have been more than a little odd that a woman who lived in Doncaster Avenue - which is but a short distance from Middle Lane - would have been asked, and would have agreed, to give the Appellant a lift to his home at Clovelly some kilometres away and in a different direction from her home. The evidence which was tendered on behalf of the Respondent - which, as the result of the amendments made to the Further Amended Statement of Claim at the commencement of the hearing, was sued in two capacities, that is, as the insurer of what was said to be the motor vehicle involved in the accident and in its capacity as the latter day version of The Nominal Defendant, it being said that the identity of the motor cycle was not known - was, for the most part, limited to the 8 UNREPORTED JUDGMENTS evidence of the police officer, Const Leonard, and the evidence of Mr Wilkinson, the substance of which evidence has been recorded by the President in the course of his judgment Even if it be the fact that P R Bell DCJ was not justified in relying, to any extent, on what was said to have been said to the late Mr Flavell by a woman assumed by his Honour to be Ms Thompson, there remained the two other pieces of evidence to which the President referred, namely the statement by the Appellant of what was in fact a total lack of knowledge or recollection of most of the events of the evening or the early morning of the accident and the evidence of the ambulance report. It seems to me, with great respect, that the ambulance report which was clearly admissible under the provisions of Pt2C of the Evidence Act 1898 is of significance. It was clearly open to P R Bell DCJ in the light of the ambulance report, to find that at the time when the two paramedics, Messrs Adams and Wilkinson, were at the scene the Appellant was conscious and not merely conscious but speaking sensibly, a fact which would, in my view, entitle his Honour to find that what was written down, and has been referred to by the President, represented what was told to Messrs Adams and Wilkinson by the appellant. Since the case for the appellant depended almost entirely, if not entirely, upon the presumption of continuance which was advanced at trial and has been advanced in the hearing of the appeal and since, in my view, the strength of that presumption, even if not totally destroyed by the matters to which I have earlier referred was singularly diminished by those matters, it was open to his Honour, at the very least, to say, as he did, that he was not satisfied on the question upon which the Appellant at all times bore the onus, namely, that the accident occurred in the manner which he asserted and that that accident was brought about by the negligence of Ms Thompson. I would propose that the appeal should be dismissed with costs. Meagher JA I agree with Powell JA. Mason P The Order of the Court is appeal dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J J Steele QC and R J A Sergi Solicitors for the appellant: Kennedy & Cooke (Batemans Bay) by their City Agents Creagh & Creagh Counsel for the respondent: G F Butler Solicitors for the respondent: Turner Whelan