FOX v GOVERNMENT INSURANCE OFFICE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Mason P, PRIESTLEY JA and GROVE AJA 18 April, 14 May 1997 [1997] NSWCA 111 The appellant was injured in a MVA in 1984 involving an unidentified motor vehicle. The appellant subsequently sued the GIO pursuant to s14A Motor Vehicles (Third Party Insurance) Act 1941. The trial judge held for the defendant on the basis that he was not satisfied that the plaintiff had discharged her onus of proof. On appeal, the appellant argued that the reasoning of the trial judge as to assessment of credibility disclosed an appealable error. Held: Appeal dismissed: The trial judge correctly recognised that the appellant bore the onus of proof. His finding that the onus was not satisfied for reasons based on his assessment of credibility and on his examination of the photographic evidence of the accident scene did not involve an appealable error. Mason P. The appellant (plaintiff) seeks to overturn a verdict for the defendant. A new trial is sought. On 19 July 1990 the appellant commenced proceedings in the District Court claiming damages for personal injuries suffered in a motor accident involving an unidentified motor vehicle. The accident had occurred about six years earlier, on 20 July 1984. The appellant's version of the accident, in her evidence at trial, was that she was driving easterly along Bringelly Road, Rossmore. It was approximately 4.30am, and the appellant was en route from her home at Bringelly to Warwick Farm Racecourse where she trained racehorses. I was driving along the road as normal and a large truck was coming towards me and as he got closer he seemed to be coming on my side of the road and just as he came upon me he forced me to just come off the shoulder of the road. It was either that or a head-on collision and the car just started to spin and I can't remember the impact, just when I — the first thing I remember was the tree. Later she said that she was forced off the road, onto the left hand side where there was loose gravel, then the car started to spin, coming to rest against a tree on the opposite side of the road. She also said that it had been raining some time before the accident. Despite advertisements being placed, neither the truck nor its driver were identified. Accordingly the appellant sued the Government Insurance Office pursuant to s 14A of the Motor Vehicles (Third Party Insurance) Act 1941. Following the accident, the appellant drove the half-mile distance back home and woke her husband. Mr Fox took his wife to the Liverpool Hospital where she was x-rayed and examined. She was discharged home. There was no doubt that she had suffered a whiplash injury. The accident was reported that day to the police at Liverpool. They took details from the appellant. According to the P 4 Accident Report dated 11 April 1984 the appellant 'lost control on wet dirt edge and collided with a tree'. 2 UNREPORTED JUDGMENTS The appellant's credit was attacked on several matters and it was submitted that her account of the accident, which was not witnessed, should not be believed. In a carefully-reasoned judgment Cramer Roberts ADCJ held that he was not satisfied on the evidence that the appellant had discharged her onus of proof. In his concluding remarks he said that: ... the essential allegation is that the accident was caused by the negligence of the driver of an oncoming unidentified truck. There are large gaps and inconsistencies in the evidence, some of which have been outlined above. Both the plaintiff and her husband were not reliable witnesses on several matters, albeit some minor but important matters of credibility, and there is little or no corroborative evidence which assists her in establishing this essential allegation .... Before us, the appellant recognised that the judgment turned largely on matters of credit. An attempt was made to avoid the difficult barriers of a credit-based trial ruling discussed in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472. One key difficulty for the appellant lies in the fact that the trial judge did not identify all of the matters tending to cause him to find adversely to the appellant's credit: see his reference to 'large gaps and inconsistencies in the evidence, some of which have been outlined above' (emphasis added) in the passage I have quoted. Nor did he have to do so: see Abalos at 179. The appellant argues that it is nevertheless possible to get a new trial where key steps in the disclosed reasoning of the trial judge as to assessment of credibility can themselves be shown to be flawed. I am prepared to assume that this is correct, at least in some cases. However, the attacks made by the appellant upon the trial judge's approach to the case have not disclosed any appealable error. THE PHOTOGRAPHS The only evidence tendered on the issue of liability was the oral evidence of the appellant and eight polaroid photographs taken by her husband on the day of the accident or the day following. Mr Fox said that he took the photos because he was advised to do so by someone at the office of Beston & Riordan, the appellant's solicitors. In her evidence the appellant said that her husband took the photos on the day or the day after the accident. She was not present but had told him 'where it was'. The appellant indicated to the Court the route she was travelling by reference to photos numbered | and 2 and said that the tree in the photo number 3 was the one that she 'kept company with, hit with the car'. The three photos were then tendered by the appellant's counsel. According to the transcript, counsel for the defendant at trial objected to the tyre marks shown on the photographs. He said (Tr 9): I don't know whether it is to be suggested in the plaintiff's case that that tyre mark may represent a tyre mark left by the plaintiff's vehicle. If it is to be suggested, then I would object to the tender, at the moment. If theyare tendered as general scenes of the roadway but not relying on the tyre mark I have got no objection at this point. At that stage the three photos were marked for identification. No further relevant evidence was given in the appellant's examination in chief. In cross examination the appellant responded that her husband took 'the photos of the scene'. She had told her husband that the accident occurred approximately 200 metres back from King Street 'and we both know where King Street is' (the URJ FOX v GOVERNMENT INSURANCE OFFICE (Mason P) 3 accident having occurred about half a mile from their home). Counsel for the defendant then proceeded to cross-examine the appellant about the tyre marks appearing on the photos. At one stage the appellant said that photo number 2 'shows me up here when I left the road and swerved and tried to correct and it hasn't shown the rest of when the car has gone around' (Tr 50). Photo number 2 (which the appellant said was taken looking back in the direction whence she had come) shows the tyre marks of a vehicle moving gradually off to the left, continuing in a straight line angling across towards the edge of the gravel verge and then swinging more sharply to the right. The appellant was challenged by the cross-examiner about the apparent discrepancy between the line of tyre marks and her earlier version of the accident (which had involved a sudden swerve to the left to avoid an oncoming vehicle). Eventuallyit was put to her that there was no oncoming vehicle, and that she had simply run off the road all by herself. The appellant was also challenged on evidence she gave to the effect that she first swerved when the two vehicles were 15 metres apart, at a time when the appellant was travelling somewhere between 60 and 80 kph. Mr Fox gave evidence that he took the photographs either late in the afternoon of the accident or the next day. His wife had 'indicated the accident' either on the way to or from hospital (on the day of the accident). Mr Fox was asked some questions about the three photographs earlier mentioned, and five others. He was fairly firm that the tree pictured in some of the photos was the one his wife had hit. The eight photos were tendered and became Exhibit F. Mr Fox was cross-examined about details of the photos and their apparent lack of consonance with the appellant's version of events. It is far from clear why this occurred, although it does emphasise that there was a live issue at trial about the skid marks shown in the photos. Nevertheless, at one stage Mr Fox sought to make the point that it was not possible to be definite about whether the tyre marks in the photos depicted the career of his wife's car. The trial judge analyses the photographic evidence at pp 6-8 of his judgment. I shall not repeat what he says. However, two points are made: (1) that the photographic evidence of tyre marks does not support the appellant's version ofthe accident; and (2) it tends to contradict that version in several respects. The members of the Court examined those photos. I can detect no error in his Honour's analysis. It is important to note that the photos provide some objective support for the respondent's case, as well as material harmful of the appellant's credibility. The appellant seeks to meet the photographic evidence in several ways. It is submitted that the photos were tendered merely to assist in understanding the topography. But, whether or not this is so (and I doubt it), it does not prevent the respondent from using the photo in the way it did, or preclude the trial judge from relying upon the skid marks depicted and not depicted in the photos. After all, there was evidence (led by the appellant himself and her husband) that the photos were taken at the very site of the accident, this being an area with which both were familiar and which they both passed twice on the day of the accident. And the respondent made very clear at the trial that it intended to use the photographic evidence in the way it did. Secondly, it is said that the trial judge was not entitled to interpret the photos in the way he did, absent expert evidence. I disagree. The tyre markings are clearly visible. If the photos were taken when and where the appellant and her 4 UNREPORTED JUDGMENTS husband said they were taken, then both what they showed and didn't show was relevant evidence capable of being used in the way the trial judge did. Thirdly, it is said that the marks could have been caused by another vehicle than the appellant's. This is possible, but the trial judge was entitled to conclude otherwise, on the evidence. In any event, the inferences drawn from the absence of markings consistent with the appellant's version of the accident remain. OTHER MATTERS GOING TO THE CREDIT OF THE APPELLANT Other parts of the evidence were capable of being used to harm the credibility of the appellant's evidence in the eyes of the trial judge. These include (a) the cross-examination about her tax affairs; (b) the improbability of the accident being avoided if, as she said, the other vehicle was first seen to be over the centre of the roadway as close as 15 metres from the place at which the appellant swerved; (c) the evidence about the Air Call Medical Centre visit after the accident, which was later contradicted by the pre-accident date on the receipt tendered in evidence; and (d) inconsistencies in the medical histories given by the appellant, as noted at pp 9-10 of the judgment. Each and all of these matters was capable of reinforcing the trial judge's conclusion on the critical issue of credibility. The appellant also complains about the following sentence in the judgment: 'The evidence is consistent with the defendant's contention that the plaintiff was tired that morning and had fallen asleep or otherwise lost concentration, even if momentarily.' It is pointed out, with justification, that there was no evidence that the appellant was in fact sleepy on the day in question. This may beaccepted, but equally it must be recognised that the trial judge in the sentence just quoted did not make a direct finding that the appellant fell asleep, nor did he have to in order to account for the accident. A momentary loss of concentration could have been sufficient, as he recognised. CONCLUSION In this case the trial judge correctly recognised that the appellant bore the onus of proof. He found that onus not to have been satisfied for reasons based on his assessment of credibility and on his examination of the photographs. These reasons have not been demonstrated to involve error. I would dismiss the appeal with costs. Priestley JA. I agree with Mason P. Grove AJA. I agree with Mason P. Appeal dismissed with costs. Counsel for the appellant: J YOUNG Solicitors for the appellant: BESTON and CO Counsel for the respondent: H SHORE Solicitors for the respondent: CREAGH and CREAGH