New South Wales Court of Appeal CITATION : Gruber v Blake [2003] NSWCA 256 HEARING DATE(S) : 04/09/03 JUDGMENT DATE : 4 September 2003 JUDGMENT OF : McColl JA at 30, 32; Young CJ in Eq at 1-29; Davies AJA at 31 DECISION : Her Honour's judgment shows careful analysis of the evidence. There are no grounds upon which to overturn the findings of fact. Appeal dismissed with costs. CATCHWORDS : The appellant and respondent had driven into town together, where they had a number of drinks at a hotel. Upon their drive home their vehicle ran off the road and serious injuries ensued. Both parties claimed the other had been driving. The trial judge found there was conflicting evidence, but decided there was sufficient evidence, when expert evidence interpreting the injury patterns to the bodies of the parties was assessed, to suggest that the appellant had been driving when the accident occurred. On appeal the appellant argued the trial judge had given insufficient weight, or failed to consider, vital evidence. TORTS- Personal injury- Whether appellant or respondent driving- Question of fact- Grounds on which trial judge's finding of fact may be overturned- Judicial reasoning- Not practical to state each pertinent factor and address every nuance that affects the finding of fact. (ND) CASES CITED : Fox v Percy (2003) 77 ALJR 989 Jones v Dunkel (1959) 101 CLR 298 PARTIES : Natalie Louise Gruber (Appellant) Roderick Andrew Blake (Respondent) FILE NUMBER(S) : CA 41188/02 COUNSEL : R R Bartlett SC and W F Fitzsimmons (Appellant) K Rowell SC and C Thompson (Respondent) SOLICITORS : Sparke Helmore (Appellant) Robert H Storey (Respondent) LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 20357/95 FILE NUMBER(S) : LOWER COURT Simpson J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41188/02 McCOLL JA YOUNG CJ in EQ DAVIES AJA Thursday 4 September 2003 NATALIE GRUBER v RODERICK BLAKE Judgment 1 YOUNG CJ in EQ: This is an appeal from a decision of Simpson J who awarded the plaintiff damages for personal injury suffered in a single vehicle motor accident near Boorowa in the early hours of 14 August 1993. 2 The appellant and the respondent were the only two persons in the vehicle and the essential issue before her Honour was who was driving the vehicle at the time. It was agreed between the parties at the trial that if the respondent established that the appellant was the driver he was entitled to an award of damages which were agreed subject to her Honour's finding on contributory negligence which she duly made and there is no complaint about that. 3 At the time of the accident it was agreed that both the appellant and the respondent were well affected by intoxicating liquor. 4 The parties had driven into Boorowa township from their properties some few kilometres outside the town for the purpose of having an enjoyable night at a hotel in Boorowa. They had driven into the town with two friends of the appellant but these people had evidently found their own way from Boorowa because the parties left the town at about 12 midnight, as I say they being the only occupants of the vehicle. 5 About 5 kilometres out of Boorowa their vehicle ran off the road. Initially it ran on to the grass verge and struck a white guide post. It rolled at least once and slewed across to the opposite side of the road and came into collision with a dirt bank. It came to rest facing the opposite direction in which it had originally been travelling. 6 The respondent lost consciousness for a time. However, at some time the appellant extricated herself from the vehicle and walked back into Boorowa. At about 3 am she woke a friend. The friend arranged for an ambulance officer to attend and she was taken to hospital. 7 The ambulance officers attended the scene of the accident shortly after 4 am. They saw the respondent seated in the driver's seat and lying towards the passenger seat and he was also taken to hospital. 8 Sergeant Bickford attended the scene of the accident and assisted in freeing the respondent. It came to the sergeant's attention that there had been another person in the vehicle at the time as well and he attended the Boorowa Hospital where he saw the appellant in the company of her father. She appeared dazed but conscious. The sergeant asked the appellant if she had been the driver of the vehicle and she replied that she had not. She had crawled out through the windscreen and come into town. However, on another occasion, almost a week later, when another police officer took a statement from the appellant and asked her whether she had been the driver of the vehicle she said she could not remember. 9 A few weeks later that officer again spoke to the appellant and she as again unable to say who had been the driver of the vehicle. On the other hand, at all times the respondent had alleged that he was the passenger in the vehicle and the appellant was the driver. 10 The critical question before her Honour was a question of fact and merely perusing her Honour's judgment one would get the impression that her Honour carefully analysed the evidence before her, evidence which had come from the parties, lay and expert witnesses. She found that both the parties were honest witnesses, however, she found that on the whole of the evidence the appellant was the driver. 11 The key part of her Honour's conclusions on this are in paras 80 and 81 where her Honour said: "Having balanced all of the expert evidence, but particularly having regard to the injury patterns, I have, not without hesitation, come to the view that it is more likely that the plaintiff was, indeed, the passenger. His explanation for being found in the driver's seat, which I have already stated I treat with some scepticism, is the most significant factor causing me to doubt that conclusion. However, there is no objective reason to disbelieve what he said. I have reached the conclusion I have on the basis, so far as I am able, of an objective analysis of objective evidence. I find, on the balance of probabilities, that the plaintiff has established that the defendant was the driver of the vehicle." 12 On this appeal Mr R Bartlett SC appeared for the appellant with Mr W Fitzsimmons and Mr K Rewell SC appeared with Mr C Thompson for the respondent. 13 Mr Bartlett submitted that whilst it would appear at first blush that her Honour gave a lengthy and careful judgment which apparently dealt with the whole of the evidence in fact there are significant gaps where her Honour did not appear to take cognisance of some very significant matters and that the failure of her Honour to demonstrate that she did so makes the conclusion that her Honour reached, which I have just stated, of doubtful validity. 14 In particular, Mr Bartlett says that nowhere in her Honour's reasons is there any reference to the significant fact that the respondent's evidence at some Local Court proceedings, which took place eleven months after the accident, showed that the respondent at that time appeared to have little memory of matters which, at the trial held nine years after the accident, he was able to depose to. 15 Mr Bartlett also complained of other omissions, such as, that her Honour did not refer to the fact that Mr Sykes, the publican, was not called, who in the way the trial was run might have been expected to be able to support the respondent's case. Her Honour did not apparently bring her mind to the possible Jones v Dunkel (1959) 101 CLR 298 inference that might be made. Her Honour does not refer to the matter at all. 16 Mr Bartlett also complains that her Honour unjustifiably gave no weight to the evidence of Mr Mirisch, a witness, who said that he had a clear recollection of the appellant and the respondent entering their parked vehicle with the respondent in the driver's seat and the appellant in the passenger seat. There is no doubt that her Honour did pay close attention to Mr Mirisch's evidence. She held that he was giving evidence honestly but might have been thinking of another night. Mr Bartlett says it was never put to Mr Mirisch that that was so. This submission was very much weakened by the fact that when this matter of the failure to cross examine Mr Mirisch was raised before her Honour at a later part of the trial she said that if that was a problem then the witness could be re-called for further cross examination but the point then seemed to be abandoned. 17 It is also weakened when one looks at the evidence as a whole and the way the trial was run to see just what significance seemed to be given to Mr Mirisch's evidence in the case as a whole. Indeed, even if there is some validity in the non-cross examination point it was still her Honour's duty to evaluate all the evidence as she put the jigsaw of all the pieces of evidence together and when a judge does that it is sometimes necessary to rationalise the evidence as a whole and that would be within the ambit of what her Honour was able to and should have done. 18 I have already set out para 80 of her Honour's reasons. Mr Bartlett notes that the critical part is that her Honour said that there was no objective reason to disbelieve what the respondent said. Mr Bartlett says that had her Honour taken into account the inconsistencies between the evidence that the respondent had given to the Local Court and that given to her Honour at the trial she could not have made that statement. Likewise, had her Honour paid full attention to Mr Mirisch's evidence she also could not have made that statement. The point is well made but the conclusion is not necessarily valid. 19 The significance of the evidence given by the respondent to the magistrate was pointed out to her Honour in the written submissions that the appellant's counsel made at the trial. I consider it unlikely in the extreme that an experienced trial judge would have ignored these submissions. Indeed, my view is reinforced by the fact that her Honour in her judgment in para 15 notes that the respondent did give evidence to the Local Court in 1994. 20 The mere fact that a trial judge does not actually refer to a matter of this nature is certainly not conclusive that she did not have that in her mind. Judges just cannot refer to every detail of the evidence in their judgments, as three Justices of the High Court recently reminded us in Fox v Percy (2003) 77 ALJR 989, 997: "No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another." 21 The point really cannot be made about Mr Mirisch's evidence in any event because there is no doubt that her Honour did review his evidence. Although she accepted him as an honest witness she did not accept his evidence in the context of all the other evidence and this was well within what a trial judge is expected to do. 22 However, let it be assumed that her Honour did overlook the significance of the evidence given by the respondent to the magistrate or unduly discounted Mr Mirisch's evidence. This would mean, accordingly, that the reliability of the appellant's evidence, and that given on her behalf and by Mr Mirisch, was increased. But, it must be remembered that her Honour clearly indicated that she depended heavily for her conclusion on the injury patterns on the parties' bodies and her evaluation of the expert evidence. 23 That expert evidence included evidence from Dr Raymond Newcombe, a specialist neurosurgeon, Mr Grant Johnston, a consulting engineer with experience in biomedical engineering and Dr Michael Henderson, a qualified medical practitioner who has undertaken specialist work in the dynamics of crashes and road safety and his experience is utilised by public authorities. To these might be added the respondent's sister, Alison Blake, a physiotherapist, who had observed her brother's injuries in hospital later on the day of the accident. 24 Although Mr Bartlett did criticise the way this evidence was approached and pointed out to us injuries shown in the photographs which are in the blue appeal book and the notes made by hospital staff which might point in the other direction I find it unnecessary to analyse the evidence because her Honour paid close attention to it, discussed it, evaluated it, accepted some and not other parts of it and reached her conclusion. This is well within the trial judge's scope and is normally something that is done without interference by appellate courts. 25 Cases where there are only two persons in the car, both well affected by liquor, where each claims the other is the driver, are not unusual in our courts and pose very awkward questions for the trial judge. In this case my view of the whole of her Honour's judgment shows a careful analysis of the evidence. The case was one where the respondent consistently said that the appellant was the driver. The appellant had decamped from the scene leaving the injured respondent in the car. She had said initially she was not the driver but then that she could not remember. 26 Both parties were well affected by liquor. The respondent was found in the driver's seat about an hour after the accident. He gave a rational explanation which might be regarded with some scepticism. The injury pattern on the whole indicated that the appellant rather than the respondent was the driver. Her Honour analysed all this and came to the conclusion that on the balance of probabilities she would find that way. 27 McHugh J in Fox v Percy, to which I have already referred, said that the cases recognise that an appellate court may reverse a trial judge on questions of fact even if based expressly or inferentially on demeanour. His Honour went on to say at 1005: "There must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses." 28 Mr Bartlett has pointed out all the possible criticisms that could be made of her Honour's judgment. However, to my mind these criticisms do not come close for this appeal to come within the category referred to by McHugh J in that case. Her Honour's conclusion that the appellant was more likely than not to have been the driver of the car on the occasion of this accident was well within her province and I do not consider that there was appealable error in the way in which her Honour reached that conclusion. 29 Accordingly, in my view the appeal must be dismissed with costs. 30 McCOLL JA: Mr Bartlett put the appellant's case carefully and eloquently but for the reasons given by Young CJ in Eq I too am of the view that the appeal should be dismissed with costs. 31 DAVIES AJA: I agree with Young CJ in Eq and with the order proposed. 32 McCOLL JA: The orders of the Court therefore will be the appeal is dismissed with costs. ******************* Last Modified: 09/10/2003 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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