Reported Decision : (2000) 31 MVR 398 New South Wales Court of Appeal CITATION : Blacktown City Council v Black [2000] NSWCA 170 revised - 26/04/2007 FILE NUMBER(S) : CA 40465/99 HEARING DATE(S) : 10/07/00 JUDGMENT DATE : 13 July 2000 PARTIES : Blacktown City Council (Appellant) David James Black (Respondent) JUDGMENT OF : Sheller JA at 1; Fitzgerald JA at 2; Heydon JA at 21 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 10056/93 FILE NUMBER(S) : LOWER COURT Hidden J JUDICIAL OFFICER : COUNSEL : Mr D.L. Davies SC / Mr M.T. McCulloch (Appellant) Mr A.J. Bartley SC / Ms E. Welsh (Respondent) SOLICITORS : Phillips Fox (Appellant) Doherty Partners (Respondent) CATCHWORDS : Negligence - Motorcycle accident - whether the appellant's negligence was responsible for the accident - whether the respondent's account of the events should have been relied on by the trial judge - ND DECISION : Appeal allowed with costs; Judgment in favour of the respondent set aside; New trial ordered on the issue of liability; The costs of the first trial should be reserved to the judge at the retrial; The respondent if otherwise qualified should have a certificate under the Suitor's Fund Act 1951 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40465/99 SC 10056/93 SHELLER JA FITZGERALD JA HEYDON JA THURSDAY 13 JULY 2000 BLACKTOWN CITY COUNCIL v BLACK JUDGMENT 1 SHELLER JA: I agree with Fitzgerald JA. 2 FITZGERALD JA: The respondent was injured in the early hours of the morning on 19 March 1987. He sued the appellant for damages for negligence, and recovered judgment for $552,573. This appeal is brought from that decision. Briefly stated, the appellant asks that the respondent's judgment be set aside and his action dismissed with costs, including the costs of the appeal. Alternatively, the appellant seeks an order for a new trial, limited to the issue of liability. 3 The respondent was injured when he lost control of his motorcycle in Bowmans Road, Marayong, near its intersection with Turbo Road. The trial judge found that loose material on the roadway, as a result of construction work being carried on by the appellant in the locality at the relevant time, was the major factor causing the respondent to lose control of his motorcycle. His Honour was also satisfied that the respondent was riding too fast in the circumstances, and reduced his damages by 25 per cent for his contributory negligence. 4 The appellant's various grounds of appeal are all ultimately directed to its argument that the trial judge should not have been satisfied that loose material on the roadway for which the appellant was responsible caused the respondent to lose control of his motorcycle. 5 Although the appellant submitted the respondent did not prove that it was responsible for any loose material on the relevant section of the roadway, the appellant did not dispute that it was carrying out major construction work in the vicinity and the evidence contains no suggestion that any loose material on the roadway might have come from any other source. The appellant's principal challenge is to the trial judge's finding that there was loose material on the roadway which caused the respondent to crash. The respondent's testimony provided the sole evidentiary foundation for that finding. 6 In this Court, the appellant did not contest the trial judge's opinion that the respondent was an "honest unsophisticated witness" whose "genuine" "recollection" was that loose material on the roadway caused him to crash. Nor, of course, was his Honour's statement that he had "given the whole of the evidence careful scrutiny" disputed. However, the judgment appealed from contains no indication that the trial judge appreciated that the respondent's honesty and the reliability of his evidence are separate, different issues. The finding that the respondent's evidence of his "recollection" was "genuine" did not require a conclusion that it was accurate. The respondent did not impugn the honesty of other witnesses, which was also accepted, at least implicitly, by the trial judge. His Honour was required to assess the accuracy of the respondent's recollection in the context of that other evidence and internal indications of the reliability of the respondent's evidence. 7 The trial took place more than a decade after the accident, in which the respondent was rendered unconscious. Initially, he suffered amnesia. He told an ambulance officer who attended him at the scene that he could not remember what had happened. About 11 days later, on 30 March 1987, the respondent told a police officer, Constable Passmore, that "about all" he could remember was that he "overtook a car". That statement was made days after the respondent recovered consciousness and shortly before he was discharged from hospital. In the different versions the respondent gave under cross-examination his "memory of what occurred in the accident from the time [he] first struck the [loose material on the roadway]" had not improved between the accident and trial or he had experienced a return of memory beginning while he was in hospital. It is impossible to reconcile the respondent's various versions of the return of his memory, which differed in his accounts as to what he claimed to remember and when his memory returned. 8 Further, the respondent's recollection of how the accident occurred was undoubtedly defective. The accident occurred very quickly, at night, and the respondent would have had only a brief look at the material section of the road surface. The respondent's pleading alleged that he "struck a raised new tar surface together with drifts and small piles of loose blue material", but the allegation of a raised tar surface was abandoned. In his evidence, the respondent described the loose material which he said he observed as "blue metal", "shiny blue metal", "a gleam of blue metal", "like shiny black tar", "glittery", and "like quartz in rocks". According to the respondent, the material section of the roadway had been resurfaced, and the loose material was scattered across the road "like they had tried to sweep it up" and was almost like a sheet or blanket across the road. 9 The trial judge found that the respondent's description of the extent of the roadworks was incorrect and the road had not been resurfaced. Three possibilities concerning the nature of the loose material alleged by the respondent were identified. The trial judge found that the possibility of spilt shale was "remote", whereas spilt sandstone was "more likely" and a "real possibility". However, on the evidence of the appellant's engineer, Mr Morgan, it was most unlikely that loose sandstone on the roadway caused the respondent's accident because of the route by which sandstone was brought to the construction site, the precautions taken to prevent spillage and the different colour of the sandstone, (which was "yellowy-orange"). The only other possibility identified was "debris" from excavation work in the vicinity. No attempt was made to relate recent excavation work to that possibility although, on the respondent's evidence, the loose material had not been present on the previous day. Finally, Constable Passmore gave evidence that he traversed the path taken by the respondent's motorcycle, which was discernible by a 38 metre long skidmark, and did not notice any loose material as, he claimed, he would have done if loose material had been present. 10 The trial judge discounted the evidence of both Constable Passmore and Mr Morgan on the basis that each relied, to some extent at least, on usual practice, which is not surprising more than a decade after the accident. 11 Another major obstacle to a conclusion that the respondent's evidence was reliable lay in his account of his actions. The trial judge found that the respondent was going faster than he said. Indeed, he seems to have been going very fast, as stated by the driver and passenger of a car which he overtook. Reference has already been made to the 38 metre skidmark, which terminated 10 metres before the point at which the respondent's motorcycle came to rest. The trial judge also rejected the respondent's evidence that he did not brake heavily. 12 On what was probably the respondent's principal version of what occurred, he encountered loose material shortly before a curve in the road and lost control on the curve. That is inconsistent with the skidmark, which began before the curve and about 6 metres prior to commencement of the loose material as located by the respondent. Further, the skidmark did not enter the curve but continued in a relatively straight line past the intersection and onto an incomplete section of the proposed new road. That was consistent with a statement by the driver of the car, who said: "The road bends to the left but the bike just went straight ahead. I could see him put the brakes on and the back wheel started to slide out sideways, off the road and then there was just a cloud of dust." 13 While the trial judge said it was significant that Constable Passmore did not notice any loose material on the roadway, the significance which his Honour attributed to that circumstance was diminished by a comment to the effect that the loose material might have been overlooked because the police officer might not have appreciated its significance although he was seeking to establish the cause of the accident. The possibility that he might not have appreciated, and hence overlooked, the presence of loose material on the roadway was not suggested to Constable Passmore in his cross-examination. 14 The trial judge found further support for the respondent's allegation that loose material on the roadway caused the accident in the following statement in a report from Dr Sengupta dated 22 March 1993, i.e., 6 years after the accident: "Apparently, while riding a motorbike, he took a corner and lost control because of excessive gravel on the road." 15 It is sufficient for present purposes to observe that it was not established "when that history was provided" (as his Honour noted), or even that the respondent was the source of Dr Sengupta's statement, as his Honour assumed although the report was only in evidence in relation to the issue of damages and there was no discussion at the trial of the use to which the doctor's hearsay statement was ultimately put. 16 In this Court, the respondent sought to sustain the judgment in his favour by emphasising that the size of the appellant's roadwork operation made it likely that there was loose material on the road, a matter not referred to by the trial judge. 17 In the circumstances described, the trial judge's omission to consider the question of the reliability of the respondent's evidence that the accident was caused by loose material on the roadway independently of his Honour's conclusion that the respondent's evidence was "honest" and his "genuine" recollection of what occurred means that there has not been a determination of the appellant's case upon a consideration of the real strength of the evidence adverse to the respondent's claim. [1] The appeal must therefore be allowed. 18 The respondent argued that, if the appeal is allowed, a new trial should be ordered. The appellant sought judgment in its favour on the basis that, had the trial judge properly considered the evidence, he must have concluded that, although the respondent's recollection was "genuine", it was mistaken. It was submitted that, since there is no challenge to the trial judge's findings on credibility, this Court should consider the evidence and conclude that there was no loose material on the road. 19 There is force in that submission. However, it is not inevitable that the respondent's allegation of loose material on the road will be rejected. A judge who has seen the witnesses, especially perhaps the respondent, Constable Passmore and Mr Morgan, will be in a much better position than this Court to decide whether the respondent's recollection is not only "genuine" but reliable. 20 Accordingly, I propose that the appeal be allowed with costs, the judgment in favour of the respondent set aside, and a new trial ordered on the issue of liability. The costs of the first trial should be reserved to the judge at the retrial. The respondent if otherwise qualified should have a certificate under the Suitor's Fund Act 1951. 21 HEYDON JA: I agree with Fitzgerald JA. END NOTES [1] Cf State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, [64]. Revision Reason: End Notes hyperlinks created -- (26/04/07) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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