New South Wales Court of Appeal CITATION : Percy v Fox [2001] NSWCA 100 FILE NUMBER(S) : CA 40955/99 HEARING DATE(S) : 7 March 2001 JUDGMENT DATE : 12 April 2001 PARTIES : Megan Percy Barbara Fox JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Fitzgerald JA at 75 LOWER COURT JURISDICTION : District Court LOWER COURT 9/93 FILE NUMBER(S) : LOWER COURT Herron DCJ QC JUDICIAL OFFICER : COUNSEL : Appellant: H G Shore Respondent: P Menzies QC/C R Burge SOLICITORS : Appellant: Sparke Helmore Respondent: Beston Macken McMannis CATCHWORDS : Accident between a motor vehicle and a horse and rider - Inference with Judge's findings of fact - Evidence - Conflict between police officer attending scene and expert's report. LEGISLATION CITED : Suitor's Fund Act 1951 (NSW) Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED: Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR DECISION : Appeal allowed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40955/99 DC 9/93 HANDLEY JA BEAZLEY JA FITZGERALD JA Thursday, 12 April 2001 PERCY v FOX FACTS The respondent was seriously injured when the horse she was riding collided with a Kombi van driven by the appellant. The trial judge held that the collision occurred because the appellant's vehicle was on the wrong side of the road at the time of impact. In coming to that conclusion the trial judge made findings of credit in favour of the respondent and her riding companion, Mr Murdoch, and against the appellant. Both parties had retained traffic engineer experts who provided reports on the accident tendered as evidence in the trial, but neither expert was called to give oral evidence. The police officer who attended the accident observed and measured skid marks which were on the appellant's correct side of the road. HELD per Beazley JA (Handley JA agreeing) (i) It appears that this Honour's core finding was based on acceptance of the respondent's expert's first report on the accident. However, there were a number of shortcomings with this report which the trial judge did not deal with, most notably the expert's report was based on several matters which were either not proved or not supported by the evidence. (ii) Since the respondent's expert was not called to give oral evidence, there is no principle which provides protection for his Honour's acceptance of his reconstruction of the accident. Accordingly, the trial judge erred in his acceptance of the respondent's expert report: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. (iii) His Honour's acceptance of the evidence of the respondent and Murdoch could not stand given its inconsistency with facts incontrovertibly established by the evidence, and in particular, the evidence of the police officer of skid marks on the appellant's correct side of the road: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588. (iv) There was nothing in the transcript to support the appeal ground based on bias. Per Fitzgerald JA dissenting (v) It is impermissible for the defendant to adopt a different attitude in this Court from that adopted at trial by asserting that the plaintiff's expert's opinion was based on assumptions of which there was no evidence. (vi) Although this is an appeal by way of re-hearing in the sense in which that term is used in this context, there are significant constraints on this Court's power to interfere with the trial judge's factual conclusions, especially credibility findings. (vii) Ultimately, the question for this Court is whether or not what was observed after the collision would have led the trial judge to a different conclusion. The appellant failed to persuade me that the trial judge did not carry out his task properly and competently. On the contrary, I am satisfied that the trial judge's conclusion was properly open to him. ORDERS (i) Appeal allowed; (ii) Set aside the orders and judgment of the trial judge. (iii) Substitute a verdict for the appellant/defendant. (iv) The respondent is to pay the appellant's costs of the appeal and of the trial below, but is to have a certificate under the Suitor's Fund Act 1951 (NSW) if so entitled in respect of the costs of the appeal. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40955/99 DC 9/93 HANDLEY JA BEAZLEY JA FITZGERALD JA Thursday, 12 April 2001 Megan PERCY v Barbara FOX JUDGMENT 1 HANDLEY JA: I agree with Beazley JA. 2 BEAZLEY JA: The respondent was severely injured on 11 April 1992, when the horse she was riding collided with a Kombi van driven by the appellant on the Towamba Road near Eden on the far south coast of New South Wales. Herron DCJ held that the collision occurred because the appellant's vehicle was on the incorrect side of the road at the time of impact. He awarded the respondent substantial damages. 3 The appellant appeals against his Honour's verdict. There is no appeal against the quantum of damage awarded by his Honour. 4 To the extent there was common ground between the parties it was as follows. The accident occurred late in the afternoon/early evening. The appellant was driving in a westerly direction. The respondent and her companion Mr Murdoch were riding east. The road was a dirt road approximately 6 ½ - 7 metres (twenty feet) wide. On the left hand side of the appellant's vehicle there was an uphill embankment. On her far right, that is on the opposite side of the road to her direction of travel, the land dropped away. The appellant described it as a cliff. Mr Murdoch described it as an embankment. 5 The collision occurred on a blind left hand bend in the road, taking the appellant's direction of travel as the compass point. 6 Travelling in the direction of the respondent and Mr Murdoch, there was a sharp incline before the bend. The respondent's horse was a large half draught horse. Mr Murdoch's horse was smaller, but still a large horse. Both the respondent and Mr Murdoch had had alcoholic drinks before setting off on the ride. The respondent was breath tested at the hospital several hours later and had a blood alcohol reading of 1.22 grams of alcohol per 100 millilitres of blood. 7 Thereafter, the evidence as to how the collision occurred diverged in a number of vital respects. The respondent said she was riding on her correct side of the road. She said in her evidence that immediately before the collision the horse was trotting, travelling at about 8 - 10 kilometres per hour. In her statement to the police she had said the horse was at a canter, which is a faster pace than a trot. 8 She said there were three wheel ruts on the road - the middle rut being used by vehicles travelling in either direction, and the outer parts having been formed by the outer wheel of vehicles travelling in their respective directions - and that she was on the left hand side of the middle rut. 9 However, she said that when the police arrived at the scene, Sergeant Volf accused her of being on the wrong side of the road. 10 She said that as she came around the corner: "… there was a white van and there was an impact … There was no, no time to react or respond, like, white van, bang, it was virtually that quick. … The van was wide on the road, the van had taken the corner wide, was in the process of taking it wide." 11 She estimated the speed of the van as being 60 - 70 kilometres per hour. When she was again challenged as to whether she had been able to observe the appellant's speed, she said: "I certainly have a, a knowledge that it came into my view, bang. It would not have been going at the 10 to 15 kilometres that [the appellant] claims …" 12 She then said: "Well, I don't think there would have been a collision if one or the other of us wasn't going very quickly. One of us must have been going fast." 13 She said that Mr Murdoch was "just at [her] rear" on her left side, very close to the gravel mound on the edge of the roadway and on the outside of the first of three wheel ruts on the roadway. She said it was still light when the accident occurred. 14 The respondent said that she believed she came off the horse directly in front of the car. She said the horse "wasn't sideswiped and me thrown", but that she fell immediately in front of the van with her head about 30 centimetres from the passenger's side front tyre. She said she didn't know where the Kombi ended up. 15 In her statement to the police she said: "We were riding along Towamba Road, I was riding at a canter up front of Chris, I was on my side of the road, it was a big slam with the car." 16 She denied in cross-examination that she had told Sergeant Volf she was at a canter, but said in any event, there would have been very little difference in speed between a trot and a canter given the size of her horse and the incline she had come up. 17 She was cross-examined as to whether the appellant had braked before the impact. She said there was no braking, "no skidding", "no dust", "[no] skid sound", "there were no skid marks". Later she said "[t]he vehicle came round the bend and slammed into me" and that because of her injuries she was unable to look for skid marks. 18 Mr Murdoch also said that the respondent's horse was at a trot as it went into the bend, which he estimated to be about 8 kilometres per hour. He said he was "directly behind" the respondent, "on [her] left hand side". He placed his position about two to three feet in from the edge of the road. He said the respondent's horse was two metres in from the edge. 19 He described the collision, which he said occurred 5.45pm to 5.50pm, in these terms: "A white VW Kombi suddenly appeared in front of us and ran straight into …. … [the respondent's] horse, and pushed her back into me and my horse. … I was deflected or thrown out to my left side, out over the bank of the road and as the horse rolled out over the bank it went over the top of me." 20 Murdoch said that as he was going over the embankment, the Kombi was "deflecting away from where we were, it was going to my right momentarily". 21 His evidence as to what happened after he went over the embankment continued: "… but [with] the ground falling away, [my horse] didn't crush me, I fell out of the saddle and the horse went completely over the top and landed on its feet, it did a somersault, and as it was upside down I fell out and the horse just landed on its feet. I still had the reins in my hand and I was standing on the ground, the horse took a giant leap back up onto the road, just about rip my arm out of my socket, and I was back up on the roadway. … I saw the Kombi was stationary with the horse attached to the upper part of the roof on the driver's side." 22 He was asked: "Q Where was [the respondent] when you saw that? A She was falling from the saddle to her right or to the offside of the horse … in front of the VW Kombi … [The horse then] took four or so big strides on its hind legs with its feet up in the air past the van and just fell dead on the road. There was blood gushing out of it behind the Kombi van and then it rolled over … into the gutter on the downhill inside of the curve." 23 He said that whilst waiting for the ambulance he paced out the distance of the Kombi van from the left edge of the road and determined that the front passenger door of the Kombi was about one metre out from the edge and the rear about two metres out. 24 He also said that he later observed "sideway drift marks" on the road but said "there was nothing behind the vehicle, they were on the side tapering up in the direction that the van had come from". He described the marks as commencing "from, approximately, the point of impact to where the van was stationary". 25 The police arrived after he had stepped out the measurements. However, there was no mention of this in the police notebook. Nor was there any reference to the drift marks. It merely stated: "At 6pm on Saturday 11th of April 1992 We were riding up the towamba (sic) road, in a southerly direction we came around a right hand bend a VW vehicle just came around the corner and ploughed into her." 26 He was cross-examined about the entry: "Q … You didn't tell the police about anything concerning measurements you had taken regarding the position of the car on the road either before or after the impact, did you? A No. … Q You didn't tell the police [the car was on the wrong side of the road] either, did you? A I did. Q Is that something that you say that they got wrong? A That is something they didn't even write in the statement. 27 He said the police officer, Sergeant Volf, could not be bothered writing that down. He said he told the police: "They, the VW Kombi hit [the respondent], drove her back into me, threw me over the bank and the police officer, that's too complicated, it was dark and he just wrote out a bit of a statement, showed me what the statement was and I said, 'That's piss poor', he said, 'It'll do'." 28 He said he asked if the police could put in a bit more detail and that Sergeant Volf retorted: "For Christ's sake we haven't got all night." 29 He was not asked in his evidence in chief whether he mentioned the drift marks to Sergeant Volf. 30 Murdoch was cross-examined on the contents of a handwritten statement he had prepared early in 1998 (some 6 years after the accident and about 18 - 20 months before the hearing). That statement appears to have been prepared for the purposes of the proceedings and he refreshed his memory from it. In that statement he had said: "When I checked the scene at the time there was no indication of tyre brake marks on the soft dirt road (a fact not mentioned in the police report)." 31 In addition, the statement made no mention of "sideways drift marks". He explained the absence of any reference to the drift marks by saying he was only asked (presumably by his solicitor) as to whether he observed skid marks. He said he did not link skid marks with drift marks. He conceded that he knew at the time he prepared the statement that the issue in the case was whether the Kombi was or was not on its correct side of the road. It would be obvious to anyone in Murdoch's position that the presence of skid marks or drift marks would be of the utmost importance. However, when pressed as to why he had left the information about the drift marks out, he said: "There is that much information to try and collate onto paper sometimes you do forget things." 32 He said that he told the police about the drift marks. Five questions later he said he could not remember whether he told the police about the presence of drift marks. He said however, that he "would say" he brought to the attention of the police the fact that the Kombi was on its incorrect side of the road. 33 Murdoch was present at the scene of the accident for the whole time the police were in attendance. He said the police did not inspect the ground behind the Kombi. Indeed, it might be said that Murdoch was adamant that they had not done so. 34 Sergeant Volf (a constable at the time of the accident) said he observed skid marks behind the Kombi which he "stepped out". He estimated them to be ten metres long and he described their location as being "directly behind the vehicle on the correct side of the road". His sketch of the vehicle, skid marks and the dead horse in his notebook has the Kombi on the correct side of the road and the skid marks directly behind it. The vehicle was shown as "straight on" with no indication of it being at the obvious angle Murdoch said he observed. 35 Sergeant Volf did not recollect whether there were any other marks on the road, but said if any had been pointed out to him he would have recorded them. 36 The only direct cross-examination of Sergeant Volf about the skid marks was: "Q … [I]n reaching [the] conclusion [that the skid marks were on the correct side of the road], did you measure the skid marks from, for example, the, any point on the inside of the curve? A No, I did not. Q Did you take any steps in terms of taking measurements to ascertain where the centre of the roadway might be? A I didn't measure the roadway, no. … Q And would you consider that 10 metre skid marks are consistent with a stated speed of 10 to 15 kilometres an hour coming down that hill? A Coming down the hill, yes, the Valkswagen (sic) engines, they have the engine in the back and push it along, that's in my humble opinion, push it along a considerable distance rather than a vehicle with the engine in the front." 37 The trial judge accepted Sergeant Volf's evidence as to the skid marks on the correct side of the road. 38 Sergeant Volf had no recollection of Murdoch complaining about the contents of the statement recorded in the police note book. He said if a witness had some complaint about a statement his practice was to alter it and have the witness initial the alteration. 39 He also doubted he would have said something like "you were in the wrong, you looked like you were in the wrong, what happened" to the respondent. 40 The respondent also called a witness, Ms Dzikowski, who was riding west, that is, in the same direction as the appellant, at the time of the accident, intending to meet the respondent and Murdoch on the road to hand over a horse to them. She came upon the scene of the accident very shortly after the collision had occurred. She said that "all of the [Kombi] was on the right hand side", that is, the incorrect side of the road. She said the ambulance was parked on the left hand side in front of the horse. 41 The trial judge rejected Ms Dzikowski's evidence, considering that "she must be mistaken" as to the position of the vehicles on the roadway. 42 The appellant's evidence was that she first saw the horse when she was coming around the corner on the bend. She was in second gear and "fully on the left hand side of the road". She could not accurately say how far in front of her the horse was. She described the light as quite dim and she had her vehicle lights on. She said when she saw the horse she slammed one foot on the brake and one on the clutch and "the car slid a little and that's when we collided". She said in evidence that she was doing a slow speed. She agreed she told the police 10 - 15 kilometres per hour but had told an investigator 40 - 50 kilometres per hour. She conceded that it was possible she was doing that speed but also said she would have been doing 10 - 15 kilometres per hour. 43 She denied that any part of her vehicle was on the wrong side of the road, or that the horse had become wedged on the windscreen. She was cross-examined about whether the vehicle moved after the collision as follows: "Q Can you remember your car sliding or skidding? A Before? Q Yes? A When I hit the brakes, yes and then we collided, the horse and I. Q You were still sliding when you hit the horse? A I couldn't be sure, I figure so, yes, because that's what stopped me, it was a very big horse. … Q After you hit the horse, did the vehicle move at all, either by, because you steered it, or through the impact to the left towards the -- A The vehicle, no, the vehicle didn't move, I stopped and the horse took a step back, I was still on the brake and the clutch, standing, not even sitting on my seat, glass and blood everywhere, the horse took that step back, I sat down, back down on the seat… … …[D]id the impact deflect your vehicle to the inside of the corner? A Not at all, no, I came around the corner and I hit the horse straight on, I slid into it, there was no sideways, anything about it. 44 She did agree that the "front of the vehicle was [slightly] closer … into the kerb … than the rear of the vehicle" but added "but its a corner, so the car wasn't straight on it anyway, so it had to be like that". 45 The ambulance officers reported the Kombi as being on its correct side of the road at the time they arrived at the scene. 46 Each party retained traffic engineer experts. Mr Tindall was the respondent's expert. In his first report, dated 21 October 1993, he described his understanding of the accident in these terms: "The Kombi van struck [the respondent's] horse on the right front quarter. [The respondent's] horse was pushed backwards and to the left where it struck Murdoch's horse which fell over a bank. [The respondent] fell off her horse onto the front of the Kombi van." 47 In his analysis, he accepted that the respondent was travelling at about 8 kilometres per hour. He considered that the appellant's stated speed of 20 kilometres per hour was "unnecessarily low from the top of the hill to the subject curve". He continued: "It was possible that her speed just before or just after impact could have been about 20 km/h. … On the other hand the impact speed could have been higher." 48 He expressed the view: "Both horses had been moving forwards at about 8 km/h and they were both pushed backwards by the impact. Such an impact could reduce the speed of the Kombi by a significant amount. … Further the impact occurred between the right front of the Kombi and right front of the horse. Therefore there would be some rebound or deflection of the Kombi to its left after impact and the horses were deflected in the opposite direction." 49 He referred to the damage to the Kombi, the weight ratios in the first impact between the respondent's horse and the Kombi, the weight ratios in the secondary impact (when the respondent's horse was pushed back on Murdoch's horse) and the fact the speed of the Kombi was greater than the speed of the horse, and concluded at para 4.9 of his report: "[This] … indicate[s] that the relative speed at impact was greater than 40 km/h and the speed of the Kombi after impact was greater than 20 km/h. The Kombi would them (sic) take some metres to stop and with the deflection derived in paragraph 4.7 it would most likely reach its correct side of the road before stopping." 50 He concluded that the respondent's statement that she and Murdoch were on their correct side of the road "was reasonable", and continued: "That [the appellant's] vehicle was found stationary on her correct side of the road is insufficient proof that she satisfied the criterion in paragraphs 5.3 and 5.4 above." 51 In those paragraphs Tindall had stated the obvious, that "road users must allow for occasional conflict with other road users" and that where there was no marked centre line on a 6 - 7 metre road: "it would be safe to allow half a metre between one's vehicle and the outside edge of the shoulder and one metre between passing vehicles." 52 Tindall continued: "[The appellant's] vehicle could have slid outwards slightly towards the end of the curve, collided with the horses and rebounded slightly back to her left. She could also have steered more to the left when a collision appeared imminent. [The respondent's] body could have been carried an unknown distance on the front of the Kombi and fallen in front of it just before it stopped. … It is my opinion that the probability that [the respondent] and her horse were on their correct side of the road was significantly greater than the converse probability." 53 Several matters should be noted about this report. First, there was no evidence that the respondent's body ever came into contact with the Kombi. His Honour made no such finding and the only inference to be drawn from the evidence is that she did not. The evidence was that the horse hit the Kombi and the respondent fell off the horse in front of the van. It is possible, of course, that that is what Tindall meant to convey. 54 Secondly, Tindall was not aware of the existence of the 10 metres of skid marks on the correct side of the road. 55 Next, in his estimation of the speed of the Kombi as being greater than 40 kilometres per hour before impact and 20 kilometres per hour after impact, he made no reference to, and presumably did not know that, the appellant's contention was that the vehicle was in second gear. As he did not give oral evidence, that matter was never considered by him. 56 There was no evidence that the respondent's horse "was pushed … to the left where it struck Murdoch's horse". Murdoch's evidence was that the respondent's horse was "pushed … back into … my horse" and Murdoch was deflected to the left. He did not say how far back the respondent's horse was pushed back, but as his and the respondent's evidence was that Murdoch's horse's head was at the rump of the respondent's horse, it could not have been far. The respondent said all she remembered was "the white van, a slam …" and then her being on the road in front of the Kombi. 57 In a final report dated 20 September 1999, Tindall referred to the skid marks, which by then had been brought to his attention. He did not doubt the authenticity of the information, but expressed what can only be described as an advocate's scepticism: "It is noted that the police officer(s) reported a skid length of ten metres - a nicely rounded figure! One wonders if it was actually measured? How precisely were the start and ends located, some time after the event? And how was the centre of the gravel road identified for the purpose of stating that the skids were commencing and continuing wholly on [the appellant's] side of the roadway? While I accept the police evidence I caution against precise dependence on the facts. … … I challenge that the police officer was able to be certain that the skids were wholly on [the appellant's] correct side of the road, without measurements, because there was no marked centre line. It is accepted that the ends of the skids near where the van stopped were on its correct side of the road because enough witnesses seem to agree with that fact." 58 He then concluded: "The collision with the horse may have occurred anywhere along the ten metres while the van skidded or indeed before the skids, but it was most likely during the skids. Since the impact was relatively severe the impact was more likely to be in the early part of the skids. It was then that the position of the van was most important. To reiterate I caution against precise argument about the ability to locate the transverse position of the van relative to the centre of the road, at the impact point." 59 He reiterated his opinion expressed in his first report that the speed of the Kombi at the point of impact was "greater than 40 kph and the speed after impact was greater than 20 kph …". 60 As I have already noted, the trial judge accepted that Sergeant Volf had observed and measured 10 metres of skid marks on the correct side of the road. However, he also accepted that Murdoch had paced the distance from the side of the road to the Kombi van (notwithstanding that there was no entry in the policeman's notebook to that effect). His Honour also accepted that the vehicle ended up on the correct side of the road for the reasons advanced by Tindall in his first report. 61 His Honour found that: "there was prejudice which was emanating from the way in which these people presented themselves so far as the sergeant was concerned … and that to some extent must colour his investigation of the situation." 62 His Honour did not elaborate on how the investigation was affected. He then said: "I come to the conclusion, however, that despite the skid marks, that the accident occurred on the [respondent's] correct side of the road and of course in that I do not accept the [appellant] … that the accident had happened on her correct side of the road." 63 Did his Honour err in reaching this conclusion? 64 His Honour's finding, in part, was reached by accepting the evidence of the respondent and Murdoch over the evidence of the appellant. To that extent, it might be said that his Honour made findings of credit in favour of the respondent and Murdoch and against the appellant. That gives those findings prima facie protection from appellate interference on the principles enunciated by the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588. 65 However, it appears that his Honour's core finding was based upon his acceptance of Tindall's first report to which I have referred in para 43. He said: "I think that in the circumstances the fact of the matter is that Mr Tindall was correct in the assumptions he made. … I think that I would accept Mr Tindall and I think that the probabilities are that the vehicle ended up on its correct side of the road for the reasons which Mr Tindall advances." 66 I have already referred to a number of shortcomings in Tindall's first report. His Honour does not deal with any of those issues. Although Tindall reconfirmed his opinion when he was provided with information about the skid marks, it too was based on assumptions not in the evidence. In particular, Tindall doubted that the skids were wholly on the correct side of the road. His Honour's acceptance of Sergeant Volf's evidence involved a finding that the skid marks were on the correct side of the road. More significantly, Tindall's opinion in his last report involves the collision with the horse having occurred "anywhere along the 10 metres that the van skidded or before the skids". Senior counsel for the respondent disavowed any reliance on the first part of the proposition but embraced the latter part. However, in doing I consider he merely embraced the problem. There was no evidence to indicate that the horse with the respondent on it was pushed backwards 10 metres as they must have been if Tindall's opinion was to be accepted. 67 There was another difficulty. If the respondent was correct as to where she ended up on the roadway, and if she and Murdoch are to be accepted as to where they were on the roadway prior to the collision, and Murdoch is accepted as to where the front of the Kombi ended up after the collision, the respondent would have been flung some 3 metres from her horse. None of the evidence suggests that was the case. 68 There is yet another problem with Tindall's evidence. In his first report, he had the respondent's horse being deflected to the left and the van to the right. In his final report he indicated the horse was pushed backwards up to 10 metres before the Kombi came to a stop and the respondent fell to the ground. It is difficult to see how the two propositions can sit together. 69 Mr Tindall was not called to give oral evidence. Accordingly, the Abalos principle does not assist to protect his Honour's acceptance of his reconstruction of the accident. Mr Tindall's report was based on several matters which were either not proved in or not suggested by the evidence. To the extent that he accepted there were skid marks and made allowance for that in his report, he did so in a way contrary to the evidence. The only evidence of the skid marks was that they were on the correct side of the road. Mr Tindall opined they ended up on the right side of the road. There is a fundamental difference between the two. 70 There were the other difficulties with his reports to which I have referred. In the circumstances, I consider the trial judge erred in his acceptance of Tindall's explanation of the accident. 71 It follows that, in my opinion, the evidence of the respondent and Murdoch that the respondent was on the correct side of the road when the accident happened should not have been accepted by the trial judge. I have referred to the protection their evidence, would, in normal circumstances have under the Abalos principle. That protection is lost where "the trial judge … has acted on evidence … 'inconsistent with facts incontrovertibly established by the evidence'": Devries v Australian National Railways Commission per Brennan, Gaudron and McHugh JJ at 479. In my opinion, Sergeant Volf's evidence of the skid marks on the correct side of the road falls into that category. I add in passing, that a reading of the transcript of Murdoch's evidence presents an unconvincing picture. That would not have been sufficient to displace his Honour's acceptance of it. However, with respect to his Honour, it is not possible to rationalise his Honour's acceptance of Murdoch's evidence when it is in direct conflict with Sergeant Volf's. There is nothing in Tindall's report which stood independently of the evidence as it should have been found. 72 As this trial was very much fought as to who was on the correct side of the road, the conclusion which I have reached means that the appeal should be allowed with costs and there should be substituted for his Honour's verdict a verdict for the appellant. 73 My conclusion also makes it unnecessary to consider the other grounds of appeal, except to pause to comment that there is nothing in the transcript which indicates bias by his Honour as alleged. 74 I would propose the following orders: (i) Appeal allowed; (ii) Set aside the orders and judgment of the trial judge. (iii) Substitute a verdict for the appellant/defendant. (iv) The respondent is to pay the appellant's costs of the appeal and of the trial below, but is to have a certificate under the Suitor's Fund Act 1951 (NSW) if so entitled in respect of the costs of the appeal. 75 FITZGERALD JA: This is another unsatisfactory appeal from the District Court in routine litigation. The proceedings were not flawless, which is unsurprising having regard to the Court's workload. However, the appellant's description of the judgment as outrageous was grossly inappropriate. Likewise, the increasingly common allegations of apprehended bias, denial of natural justice and inadequate reasons are baseless. 76 The judgments of the other members of the Court make it unnecessary for me to describe the dispute in detail. More than eight years ago, a collision occurred near or shortly after dusk on a narrow, unsurfaced country road between the horse which the respondent (the "plaintiff") was riding and a motor vehicle being driven by the appellant (the "defendant") in the opposite direction. The essential dispute between the parties related to the location of the point of collision and, more particularly, concerned which of the parties was on the correct side and which on the incorrect side of the road. The plaintiff's evidence that she was riding on the correct side of the road and that the defendant's vehicle was on the incorrect side of the road was corroborated by the plaintiff's companion but contradicted by the defendant. 77 The action was tried in Moruya for four days at the beginning of November 1999. The trial judge delivered his judgment on the morning after the trial concluded. Apart from the evidence of the parties, the principal evidence in relation to the point of collision involved details of skid marks caused by the defendant's vehicle and the locations of the vehicle, the plaintiff, her horse, her companion and his horse after the collision. As is regrettably increasingly common, each party argued its case at trial through reports from "accident analysts". In their reports, these experts criticised each other's views and defended their own views. Neither was called to give evidence or cross-examined. The plaintiff's expert was absent from the country at trial but, in any event, counsel for the defendant (appellant) in this Court strenuously supported the course which was adopted. 78 Much of the 28 page written submission and approximately 2 ½ hour oral address by counsel for the defendant in this Court consisted of his lengthy criticisms of the plaintiff's accident analyst's views. Those criticisms extended not only to the expert's conclusion and reasoning but also attacked the factual assumptions upon which he proceeded. Counsel who represented the parties in this Court were different from those who appeared at trial. We do not know what, if any, arguments were addressed to the trial judge by the counsel who then appeared for the defendant in addition to those which appeared in the defendant's expert's report but we were advised by the defendant's counsel not to concern ourselves with such "ivory tower" considerations. 79 The fallacy in such an approach is manifest. For example, the plaintiff's expert's reports made it plain that he relied upon information with which he had been supplied by identified persons in specified statements, reports, statutory declarations, sketches etc. His reports were tendered without objection subject to the tender also of those documents on which he had relied which the defendant's then counsel required to be tendered. That was done. It appears that the documents required by the defendant at trial did not include the sources of the plaintiff's expert's information. (White Appeal Book, pp 166,178 and 227). It is impermissible for the defendant to adopt a different attitude in this Court from that adopted at trial by asserting that the plaintiff's expert's opinion was based on assumptions of which there was no evidence. 80 After four days of evidence and addresses by counsel then appearing for the parties which no doubt dealt with the strengths and weaknesses of the respective expert reports, the trial judge, after only a brief adjournment, delivered a judgment in which he preferred the evidence of the plaintiff and her companion and her expert's opinion. Although this is an appeal by way of re-hearing in the sense in which that term is used in this context, there are significant constraints on this Court's power to interfere with the trial judge's factual conclusions, especially credibility findings. 81 Allowance must also be made when reviewing the trial judge's judgment for the manner in which the trial was conducted and the circumstances in which judgment was delivered. Regard must also be paid to the nature of the issues which a very experienced trial judge decided in those circumstances. Those issues are well illustrated by the grounds in the Further Amended Notice of Appeal which are as follows: "1. His Honour erred in accepting the evidence of the Plaintiff and Mr Murdoch. 2. His Honour erred in failing to address the question of whether the Plaintiff's intoxication affected her ability to recall the circumstances of the accident. 3. His Honour erred in finding the Defendant was negligent. 4. In the alternative His Honour erred in failing to find contributory negligence on the part of the Plaintiff. 5. His Honour erred in concluding that the Police investigation was biased. 6. His Honour erred in finding that the accident occurred on the Plaintiff's correct side of the road. 7. His Honour erred in failing to give sufficient weight to the evidence of Sergeant Volf in relation to the skid marks left on the roadway. 8. His Honour erred in finding the Plaintiff's horse was travelling at no more than 7km/h prior to the accident. 9. His Honour failed to give sufficient reasons for his finding. 11. The approach of his Honour in the judgment was such as to give rise to a reasonable apprehension of bias. 12. His Honour failed to accord natural justice in dealing with the evidence of Sergeant Volf." 82 The appellant's argument in support of those grounds is substantially based on speculation as to what must have occurred prior to and in the collision on various hypotheses. Rational minds can reasonably differ on the outcome when such an exercise is undertaken. 83 There was nothing in contest at the trial other than factual issues in respect of which there was conflicting evidence necessitating an assessment of the credibility and reliability of the witnesses as well as consideration of substantially undisputed facts concerning what was observed after the collision. In determining those issues, his Honour had to take into account that the evidence of the parties and the plaintiff's companion was almost certainly affected by the trauma of the collision, the imprecision with which ordinary people describe such events and the possibility that the evidence of most witnesses probably involved some reconstruction after a period of years. Ultimately, the question for this Court is whether or not what was observed after the collision should have led the trial judge to a different conclusion. 84 The appellant failed to persuade me that the trial judge did not carry out his task properly and competently. On the contrary, I am satisfied that the trial judge's conclusion was properly open to him. 85 I would dismiss the appeal with costs. ************** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.