New South Wales Court of Appeal CITATION : Rayment v James [1999] NSWCA 101 FILE NUMBER(S) : CA 40811/97 HEARING DATE(S) : 1 April 1999 JUDGMENT DATE : 21 April 1999 PARTIES : Allan John RAYMENT v Michael JAMES JUDGMENT OF : Sheller JA at 1; Stein JA at 2; Fitzgerald JA at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 42/87 LOWER COURT JUDICIAL OFFICER : McGuire DCJ COUNSEL : J.L. Glisson QC/D.S. Wilkins (Appellant) H. Di Suvero (Respondent) SOLICITORS : Barry F. Cosier & Associates (Appellant) Holman Webb (Respondent) CATCHWORDS : MOTOR VEHICLE ACCIDENT - who was the driver of the vehicle? - unsigned statement made to police by respondent admitting that he was the driver - prior inconsistent statement made by witness - evidence of rescuers - evidence corroborative of the appellant's - weight to be attached to evidence - inferences to be drawn from the evidence ACTS CITED : n/a CASES CITED: SRA (NSW) v Earthline Constructions Pty. Ltd (1999) 73 ALJR 306 Warren v Coombes (1978 - 1979) 142 CLR 531 DECISION : Appeal Allowed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40811/97 DC 42/87 SHELLER JA STEIN JA FITZGERALD JA Wednesday, 21 April 1999 Allan John RAYMENT v Michael JAMES On 27 August 1983 the appellant/plaintiff and the respondent/defendant were travelling in a motor vehicle when it careered off the road and struck a telegraph pole. Several facts were undisputed. The appellant and respondent had been drinking together for many hours prior to the accident. Whilst the two were drinking at a hotel the respondent's estranged wife and his defacto arrived. An argument then ensued between the respondent and his defacto. This led the group to leave the hotel, moving across the road to a small park. There the respondent and his defacto continued to argue. The respondent's defacto seized his keys and the two then struck each other. The appellant contended that the two women then left the park heading towards the police station to obtain help. The respondent then followed the women in the subject vehicle with the appellant as passenger. Later that evening, whilst travelling along Mudgee Road, Wallerawang, the appellant and respondent were involved in the car accident. Two individuals witnessed the accident some 200 m away and hurried to the scene. Both observed that the appellant was leaning against the passenger side door of the vehicle and that the unconscious respondent was lying across him. In a unsigned statement made to the police on 14 November 1983, the respondent admitted that he was the driver of the vehicle. Further, in proceedings before the Magistrates Court on 30 October 1984, the respondent's estranged wife, Pamela James, gave evidence that it was the respondent who was driving the vehicle. However, during District Court proceedings on 4 - 5 November 1997 she claimed it was the appellant who was driving the vehicle at the time of the accident. The respondent's defacto, Annette Hart, also gave evidence in the District Court that it was the appellant who had obtained the car keys and that he drove the vehicle with the respondent as passenger. The issue before McGuire DCJ was the determination of who was the driver of the vehicle at the time of the accident. His Honour was not convinced that the respondent was the driver. A verdict was entered for the respondent. On appeal, it was argued that McGuire DCJ erred in: 1. finding that the respondent was not the driver of the vehicle at the relevant time; 2. giving greater weight to the evidence of two witnesses of their prior observations than to contemporaneous observations of witnesses at the scene of the accident; 3. giving no or insufficient consideration to the prior inconsistent statement of the defendant's witness, Mrs Pamela James; and 4. finding for the defendant against the weight of evidence. Held: The conclusion reached by McGuire DCJ that the respondent was not the driver of the vehicle is glaringly improbable. His Honour failed to give any weight whatsoever to the respondent's admission to police and he failed to give adequate weight to the evidence of the two rescuers. Further, his Honour also failed to analyse the evidence of the two women before accepting their evidence, especially the prior inconsistent statement of Pamela James. The decision reached by his Honour is contrary to the compelling inferences of the case. The preponderance of credible evidence favours the appellant. Accordingly, his Honour was in error in finding that the respondent was not the driver of the vehicle. ORDERS 1. that the verdict and judgment of the District Court be set aside. 2. that there be a substituted finding for the appellant on the issue of liability. 3. that the matter be remitted to the District Court to assess damages. 4. that the respondent be ordered to pay the appellant's cost of appeal but, if otherwise entitled, receive a certificate under the Suitors' Fund Act 1951. ********* IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40811/97 DC 42/87 SHELLER JA STEIN JA FITZGERALD JA Wednesday, 21 April 1999 Allan John RAYMENT v Michael JAMES JUDGMENT 1 SHELLER JA: I agree with Stein JA. 2 STEIN JA : This is an appeal by an unsuccessful plaintiff from a judgment of McGuire DCJ given on the 6 November 1997. The determinative issue in the case was who was the driver of a motor vehicle when it left the roadway and collided with a telegraph pole on the Mudgee Road, Wallerawang on 27 August 1983. Was it the appellant/plaintiff or, as maintained by the appellant, the respondent/defendant? 3 It had to be either the appellant or the respondent. There were no passengers. Whoever was the driver was, according to the trial judge, undoubtedly negligent. His Honour found that he was not satisfied that the driver was the defendant. It follows from his reasons for judgment that his Honour believed that the plaintiff must have been the driver at the time of the accident. The facts 4 Some facts were not in dispute. The parties had been friends for some time and on the day of the accident the defendant visited the plaintiff at his home in Portland. The defendant drove the plaintiff (in the defendant's car) to a local hotel. Later they visited a friend, the defendant again driving and the plaintiff a passenger. The defendant then drove the plaintiff to a hotel at Wallerawang. At some point of time the defendant's estranged wife, Pamela James, and his then de-facto, Annette Hart (Lowe) arrived at the hotel. The women were apparently friends, despite their relationships with the defendant. They all went outside the hotel and the women went across to their car and the defendant got into his vehicle, with the plaintiff a passenger, and drove across to where the womens' car was parked. A violent argument erupted between the defendant and Ms Hart. She grabbed his ignition keys and they struck each other. It is from this point that the accounts of the parties start to diverge. 5 According to the plaintiff the women drove off towards the police station to get help, and the defendant followed with the plaintiff a passenger. That the defendant and plaintiff drove towards the police station after the women left the vicinity of the hotel finds confirmation in the defendant's evidence (Red AB 77), as well as in the evidence he gave to the Magistrate (Red AB 152, 155) in defending a traffic charge. In the District Court however, the defendant said that the plaintiff was the driver. Nonetheless, the two men agreed that as they neared the police station, they did a u-turn and travelled back towards the Mudgee Road. 6 On the other hand, the two women said in evidence in the District Court that during the argument between the defendant and Ms Hart, the plaintiff obtained the car keys, got into the driver's seat and sped off down Mudgee Road with the defendant as passenger. This, it may be noted, was in the opposite direction from the police station. 7 The accident occurred on the Mudgee Road when the wheels caught in the gravel at the side of the road and the driver lost control. The car hit some guide posts and a telegraph pole and tipped over on its (passenger) side. The accident was witnessed by Mr Stanton and Mr Jones from a distance of around 200 m. They both approached the vehicle and described in their evidence the positions of the plaintiff and defendant inside the cabin of the car. The plaintiff was underneath the unconscious defendant and up against the passenger door. Both parties were taken to hospital. At the hospital, according to the plaintiff, the defendant's wife (Ms James), said that the defendant could not take the blame because her house was collateral for the defendant's trucking business. Subsequently, and on 14 November 1983, the defendant made an unsigned statement to police admitting that he was the driver. Later, at the Local Court hearing, he resiled from this. The judgment 8 The evidence before Judge McGuire consisted of the plaintiff, Messrs. Jones and Stanton, the defendant, his wife Ms James, his de-facto Ms Hart and extracts from the evidence before the Local Court. I leave to one side the evidence of Mr Griffiths which was of no probative value. 9 The plaintiff described the events of the day, said he was the passenger at the time of the accident and described his position in the vehicle with the defendant lying across him (and unconscious) when the rescuers arrived at the scene. Messrs. Stanton and Jones described the accident scene and the positions of the bodies within the car. Their evidence was largely corroborative of the plaintiff's. His Honour stated that if the evidence of the rescuers had been the only evidence, he would have found for the plaintiff. 10 The defendant said that he was a passenger but agreed that he had made a statement to police that he was the driver. He said that he did this because the police told him that they had evidence indicating that he was the driver, ie. Stanton and Jones. As I have said, he resiled from this admission when giving evidence in the Local Court in defending a charge of having more than the prescribed quantity of alcohol in his blood. His Honour gave a number of reasons why he had no confidence in the defendant's account given in the District Court. 11 Pamela James gave evidence that during the argument between the defendant and Ms Hart, the plaintiff got into the driver's seat. The vehicle then took off towards the Mudgee turn-off. The trial judge, in assessing her evidence, did not refer to her prior inconsistent evidence to the Magistrate on 30 October 1984 that the defendant was driving and the plaintiff was in the passenger seat (Red AB 150). Annette Hart gave similar evidence to Ms James. His Honour accepted their evidence. He said their accounts were 'entirely convincing' and were not shaken in cross-examination. He added that they impressed him 'as reliable raconteurs whereas the plaintiff did not'. 12 The key finding of his Honour is: If, as I believe, despite the plaintiff's evidence that neither of them was wearing a seat belt, it is entirely possible that they could have been thrown about in the collision and the career of the vehicle immediately prior thereto, and finished up in the positions described by the eye witnesses, although the plaintiff was the driver and the defendant was the passenger. [Red AB 16] 13 It seems that, consistent with the evidence of the plaintiff that he had his seat belt fastened, a comma is missing after the word 'evidence' in line one of the above quote. The appeal 14 It is necessary for the court to closely examine the evidence at the trial. When this is done a number of observations may be made. First turning to the evidence of the plaintiff. Unlike the defendant, and Ms James, he had at all times been consistent in his account. His case was supported by the admission made by the defendant to the police three months after the accident and by the evidence of the two independent witnesses (Stanton and Jones). Leaving to one side his Honour's doubts about the plaintiff getting his foot caught behind the air-conditioning unit under the dash board, the only adverse comment the judge made about the plaintiff is that he was not impressive as a reliable raconteur. There is no other discussion of his credit. Moreover, an examination of the matter of the foot being caught under the air-conditioning unit appears to be a false issue, and one ultimately going nowhere. 15 When dealing with such a crucial issue, indeed the determinative issue in the case, the plaintiff deserved a more detailed examination of his evidence than these few words. Disbelieving the plaintiff meant that it had to be concluded he had concocted the whole story from the very beginning and was prepared to lie on oath in order to get damages. In addition, having understandably dismissed the defendant's evidence, his Honour needed to address the admissions contained in his police statement. This is partly because of the detailed description of the accident provided by the defendant to police in the statement. Details which would be unlikely to be known to him unless he was the driver. It must also be kept in mind that the trial took place in 1997, some 14 years after the accident. 16 Next, is the evidence of the rescuers. There was absolutely no reason to doubt their evidence which, as I have observed, corroborated the plaintiff. In fact, it appears that his Honour did accept their evidence. To find that the defendant was not the driver (but the passenger) meant that it was necessary to explain why it was that Jones and Stanton found the defendant lying on top of the plaintiff next to the passenger door. His Honour rationalised that it was 'entirely possible that they could have been thrown about in the collision and the career of the vehicle immediately prior [to the accident]'. This was however no more than speculation. There was no evidence to support such a finding. There was certainly no suggestion that the vehicle rolled over, only that it skidded on its side. This is confirmed by Mr Stanton and the photographs. Absent expert or other evidence, it was a finding which was not open. 17 What of the evidence of the two women? So far as his Honour's acceptance of Pamela James is concerned, two important items of evidence must be noted. Both were not mentioned by the trial judge. First, she gave evidence before the Magistrate that she saw the defendant's vehicle coming up towards the police station and then she and Ms Hart ran around the back of the station. She did not see who was driving at that time. She also said that before the plaintiff and defendant left the hotel car park, she and Ms Hart had driven to the police station. This evidence was entirely contrary to her evidence given in the District Court. In accepting Ms James' evidence, his Honour made no reference to her prior inconsistent sworn evidence. It did not rate a reference nor any weighting. It was significant evidence which was not dealt with. 18 Similarly, in accepting Ms Hart, his Honour made no real analysis of her evidence. The context of her involvement was, of course, the bitter and violent fight she had with the defendant in which she grabbed his ignition keys and threw them away. It may also be noted that her recollection of the events was, in many respects, very vague. 19 One issue which his Honour did not deal with was whether or not she and Ms James went to the police station. In this respect, it may be noted that in accepting the evidence of the women, his Honour said that there was no suggestion that their view of the events at the hotel car park was obscured. However, it was the plaintiff's case that the women had left the car park in order to go to the police station before the plaintiff and defendant left the scene. 20 His Honour also noted that Ms Hart was at pains to impress him that there was 'no love lost' between her and the defendant. Nonetheless, it must be said that neither she, nor Ms James, were independent witnesses. Certainly, not in the sense that Stanton and Jones were. In my opinion, what his Honour failed to do was to properly weigh their evidence in the light of all of the evidence, in particular as against the evidence of the rescuers. 21 When the evidence is considered as a whole, scrutinised and weighed, his Honour's conclusion that the defendant was not the driver is one which can be said to be glaringly improbable. The judgment fails to state why the plaintiff's evidence that the defendant was the driver was not accepted. It fails to give any weight to the defendant's admission to the police. It fails to give due weight to the independent evidence of the rescuers and fails to analyse the evidence of the women before accepting them, especially given the prior inconsistent sworn evidence of Ms James, which is not even mentioned. Given their respective relationships with the defendant, their evidence should have been weighed with caution, but was not. 22 In my opinion, the decision of the trial judge may also be said to be contrary to the compelling inferences of the case. While there are obviously real reasons for caution on the part of an appellant court in reaching a different conclusion on factual matters from a trial judge, nonetheless it is the duty of the court to review all of the relevant evidence and make up its own mind. 23 In Warren v Coombes (1978 - 1979) 142 CLR 531 at 551 it was said that: … in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. 24 In SRA (NSW) v Earthline Constructions Pty. Ltd. (1999) 73 ALJR 306 Gaudron, Gummow and Haynes JJ said that 'the substance of the matter is that there has not yet been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented' (para 64 at 321). In my opinion, his Honour never embarked upon such a consideration. 25 In Earthline Kirby J usefully sought to enumerate instances (not exhaustive) of where credibility findings do not bar an appeal. Of relevance to this appeal are numbers 4 and 7 at paragraph 93 pp 331 - 332. For example, a failure to weigh all relevant considerations and (by inference) a failure to take account of a relevant circumstance. Further, where a credibility finding is so 'glaringly improbable' that it justifies and authorises appellate interference. In such a situation an appellate court has the power to intervene to prevent the risk of a serious injustice. 26 The evidence in the trial is such that the court is in as good a position to assess the evidence as the trial court. It is principally a question of the conclusions and inferences to be drawn from the evidence. The fact of the matter is that the preponderance of the credible evidence favours the appellant. In re-hearing the matter, we must form our own conclusions on the evidence. When the evidence is re-examined, and giving full weight to the advantages of the trial judge, the irresistible conclusion is that the defendant was the driver. It was an error to find otherwise. In these circumstances, a new trial would be superfluous. The court should substitute a finding for the appellant on liability. In this circumstance, counsel for the respondent concedes that the plea of contributory negligence would not arise. Accordingly, it remains for the District Court to assess the plaintiff's damages since this was a task which his Honour did not embark upon. 27 The orders I propose are: 1. that the verdict and judgment of the District Court be set aside. 2. that there be substituted a finding for the appellant on the issue of liability. 3. that the matter be remitted to the District Court to assess damages. 4. that the respondent be ordered to pay the appellant's costs of the appeal but, if otherwise entitled, receive a certificate under the Suitors' Fund Act 1951. 28 FITZGERALD JA: I agree with Stein JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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