New South Wales Court of Appeal CITATION: Young v Cesta-Incani & Anor [2007] NSWCA 229 HEARING DATE(S): 14 August 2007 JUDGMENT DATE: 4 September 2007 JUDGMENT OF: Ipp JA at 1; Tobias JA at 2; Hoeben J at 71 DECISION: (a) With respect to the notices of motion filed by the appellant on 19 April 2007 and by the first respondent on 9 May 2007, grant an extension of time for the filing and serving by the appellant of an ordinary summons for leave to appeal and by the first respondent of an ordinary summons for leave to cross-appeal; (b) Direct the appellant and the first respondent to file and serve their respective summonses for leave to appeal and leave to cross appeal within 7 days from the date of these orders; (c) Grant leave to the appellant to appeal and to the first respondent to cross-appeal on condition that the notices of appeal and of cross-appeal are filed within 7 days from the date of these orders; (d) Appeal and cross-appeal allowed; (e) Set aside the verdict on the issue of liability in favour of the first respondent entered by Delaney DCJ on 26 October 2006; (f) Remit the proceedings to the District Court for a new trial on the issue of liability and, if necessary, damages; (g) The respondents to pay the appellant's costs of his summons for leave to appeal and of the appeal but the first respondent to have with respect to the appeal a certificate under the Suitor's Fund Act 1951 if otherwise qualified; (h) Each party to pay his, her or its costs of the summons for leave to cross-appeal and of the cross-appeal CATCHWORDS: APPEAL AND NEW TRIAL – Adequacy of Reasons – Duty to rationally engage with the case presented by each party – Duty to give reasons for preferring one Expert Witness over another LEGISLATION CITED: N/A Archibald v Byron Shire Council (2003) 129 LGERA 311; [2003] NSWCA 292 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Eckersley v Binnie (1988) 18 Con LR 1 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [2000] 1 AII ER 373 Fox v Percy (2003) 214 CLR 118; 197 ALR 201; [2003] HCA 22 Mifsud v Campbell (1991) 21 NSWLR 725 Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321 CASES CITED: Moylan v Nutrasweet Co [2000] NSWCA 337 The Nominal Defendant v Kostic [2007] NSWCA 14 Papadopoulos v New South Wales Insurance Ministerial Corporation [1999] NSWCA 116 Pledge v Roads and Traffic Authority (2004) 205 ALR 56; [2004] HCA 13 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Whalen v Kogarah Municipal Council [2007] NSWCA 5 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127;[2004] NSWCA 174 Wayne Young PARTIES: Savina Cesta-Incani The Nominal Defendant FILE NUMBER(S): CA 40758/06 A: M Elkaim SC / J Ryan COUNSEL: 1R: L King SC / N Canosa / 2R: P O'Connor A: Sparke Helmore, Sydney SOLICITORS: 1R: Williamson Isabella, Dapto 2R: McCourts, Pyrmont LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 99/03 LOWER COURT JUDICIAL OFFICER: Delaney DCJ LOWER COURT DATE OF DECISION: 26 October 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40758/06 DC 99/03 IPP JA TOBIAS JA HOEBEN J Tuesday 4 September 2007 WAYNE YOUNG v SAVINA CESTA-INCANI & ANOR Judgment 1 IPP JA: I agree with Tobias JA. 2 TOBIAS JA: On 9 October 2000 at about 2.40 pm in inclement weather conditions, a head-on collision occurred on Picton Road, Wilton between motor vehicles driven by the appellant and the first respondent respectively in which the latter was seriously injured. 3 Immediately prior to the collision the appellant had been travelling in the westbound lane of Picton Road and the first respondent in an eastbound lane. At the relevant location the roadway comprised three lanes: the southern lane was for traffic travelling west whereas the two adjoining lanes were for traffic travelling east. Of those two lanes, the centre lane was an overtaking lane in which the first respondent was driving just before the accident, having overtaken a coal truck in the adjoining northern lane. 4 Each of the appellant and the first respondent asserted that the collision occurred in their respective lanes, that is, according to the appellant in the westbound lane and according to the first respondent in the centre eastbound lane. Neither resiled from this during the course of the trial. 5 The first respondent alleged that the collision was a result of the appellant attempting an overtaking manoeuvre that took him into the centre overtaking lane for eastbound traffic. On the other hand the appellant alleged that whilst travelling west in his correct lane, he was overtaken by an unidentified white utility which then swung back in front of him after which he noticed the first respondent's vehicle sliding towards him in the westbound lane. 6 It was common ground that the front off-side of the appellant's vehicle collided with front nearside of the first respondent's vehicle. The former then ended upon the southern edge of the roadway whereas the latter ended up generally in the northern eastbound lane facing south. 7 On 4 June 2003 the first respondent instituted proceedings in the District Court against the appellant alleging that he negligently travelled on to his incorrect side of the road being the eastbound lane in which the first respondent was travelling thereby colliding with her vehicle causing her serious injuries. 8 The proceedings were later amended on 9 March 2004 by the joinder of the Nominal Defendant (the second respondent), it being claimed that an unidentified motor vehicle crossed to its incorrect side of the road causing the first respondent to take evasive action to avoid a head-on collision and thereby causing her vehicle to collide with that driven by the appellant. The unidentified vehicle was the white utility alleged by the appellant to have overtaken him just prior to the collision. 9 The proceedings were heard by his Honour Judge Delaney who on 26 October 2006 found first, that the appellant was negligent; second, that there was no unidentified vehicle as alleged by the appellant involved in the accident and, third, that the first respondent was not guilty of contributory negligence. His Honour therefore entered a verdict on the issue of liability in favour of the first respondent against the appellant. It would appear that no formal order was made dismissing the proceedings against the second respondent. 10 As the only issue determined by the primary judge was that of liability, his decision was interlocutory so that any appeal from his decision required a grant of leave. Accordingly, the appellant filed a summons for leave to appeal together with a notice of motion seeking an extension of time for the filing and service of that summons. 11 As a defensive measure in the event that the appeal succeeded, the first respondent foreshadowed the filing of a cross-appeal from the primary judge's "decision" in favour of the second respondent. The first respondent also filed a summons for leave to cross-appeal and a notice of motion for an extension of time for the filing of that summons against the second respondent. The applications for leave and the appeal and cross-appeal were heard concurrently. As there was no objection to the granting of an extension of time for the appellant file and serve its summons for leave to appeal and for the first respondent to file and serve its summons for leave to cross-appeal, those extensions of time should be granted. The nature of the evidence before the primary judge 12 The critical issue in both the trial and the appeal was the determination of the point of impact between the two vehicles. Apart from the nature and extent of the damage to the two vehicles including their location on the roadway where each came to rest, the most significant physical evidence capable of assisting in that determination comprised a deep gouge mark located in and across the centre of the westbound lane together with a series of lighter scrape marks in the roadway about seven metres west of what I shall refer to as the primary gouge mark and which straddled the dividing line between the westbound lane and the adjoining eastbound overtaking lane. 13 It was the appellant's case before the primary judge that the primary gouge mark was at the point of maximum impact between the two vehicles thus establishing that the collision occurred in the westbound lane. It is the alleged failure of the primary judge to adequately deal in his reasons with the significance of that gouge mark that forms the appellant's primary submission on the appeal. 14 The evidence before his Honour was, therefore, partly in documentary and pictorial form and partly oral. As the police had investigated the accident, evidence was called from Senior Constable Cooper, Detective Sergeant De Bruin and Sergeant Castles. The last-mentioned officer prepared a report (Exhibit 1D(8)) in which, under the heading "Gouge Marks" he wrote the following: "Located in the west-bound centre about the centre of the lane is a deep gouge mark extending across the lane. This mark is located about 2 metres east of the rear of [the appellant's vehicle]. There is white colouration within the gouge mark. This gouge mark has heavy stria throughout possibility consistent with the rotation of the wheel. There are a series of lighter gouge marks about 7 metres west of this gouge mark in the area of the centre lines which are white in colour." 15 In his oral evidence Sergeant Castles, who had attended the accident site, described the primary gouge mark as "spiral" with a number of striation marks through it. He explained that those marks looked like lines within the gouge mark itself and were whiteish in colour. Detective Sergeant De Bruin, who in his report had described the primary gouge mark as having "heavy stria through it", in his evidence explained the term "stria" as heavy lines across the gouge mark. 16 None of the police officers gave evidence as to the significance of the primary gouge mark in terms of its contribution to the determination of the point of impact between the two vehicles. That evidence was, however, given by two traffic accident engineering experts, Mr H K Woodward, a forensic crash investigation engineer called on behalf of the first respondent and Mr William Keramidas, a similarly qualified engineer, on behalf of the appellant. Both experts prepared reports and gave oral evidence. There was no suggestion that they were other than experts in forensic engineering and collision reconstruction involving the scientific analysis of collision scenes and damaged vehicles. 17 However, there was one significant difference between Mr Woodward and Mr Keramidas. The latter had had no previous association with the parties or the accident itself. The former, on the other hand, was in fact travelling west on Picton Road shortly before the collision. According to the primary judge Mr Woodward recalled being overtaken by a white Ford station wagon which then disappeared around a corner. He then arrived at the scene of the accident and saw the Ford vehicle on the side of the road and concluded that it was the same vehicle as had overtaken him earlier. 18 On arriving at the scene of the accident Mr Woodward directed much of his attention to the first respondent who was still in her vehicle and hardly breathing. The primary judge (at [23]) observed that "Because of his profession, Mr Woodward became interested in the circumstances of the accident and took it upon himself to make his own enquiries and then later offered his services to the plaintiff. The plaintiff took up the offer and Mr Woodward continued with his investigations, eventually preparing a report, Exhibit G." In fact Mr Woodward had visited the first respondent in hospital and provided a statement to the police. 19 It is apparent from a reading of Mr Woodward's evidence that he was particularly biased against the appellant. This was recognised by the primary judge who concluded (at [29]) that "Unfortunately, Mr Woodward did not remain objective about Mr Young" In fact, Mr Woodward took it upon himself to reject the appellant's version of events accusing him in part of his report as telling "a blatant lie". He was clearly not an objective independent witness. 20 Before turning to the two experts' evidence, it is necessary to note the evidence of Mrs Marion Bach whom the primary judge (at [19]) accepted. His Honour summarised her evidence in [13]-[19] of his judgement. The core of that evidence was that she was travelling west on Picton Road when she was overtaken by a Ford station wagon at a speed of between 120km-140km per hour. She paid particular attention to the overtaking vehicle because of the manner in which and the speed at which it was being driven. According to his Honour (at [14]), "She made a note of the registration number. She could not remember the numbers but could remember the letters UVB" 21 Shortly after she was overtaken by the station wagon, the collision occurred. On arriving at the scene of the accident she wrote down the part of the registration number of the station wagon that she recalled, namely UVB, on a piece of paper. She said that the vehicle she saw on the southern side of the carriageway (the appellant's vehicle) was the same vehicle that had overtaken her earlier. 22 In her statement to the police, which his Honour accepted as accurate, Mrs Bach had said that after overtaking her vehicle, the station wagon had pulled out again into the overtaking lane for eastbound traffic to overtake a Ford vehicle which was front of her. It then pulled back into its correct lane. In her statement she then said: "I then saw a shadow behind the coal truck and it began to pull out from behind it. I saw that it was a small car and it had its low beam on. At the same moment the station wagon has also pulled out into the overtaking lane of the eastbound lane in an attempt to overtake the coal truck. It appeared to me that at this stage both vehicles hit head on in the overtaking lane of the eastbound lane …" 23 In her oral evidence it became clear that Mrs Bach had not written down the three letters of the station wagon's numberplate, UVB, at the time she was allegedly overtaken by it but had only done so after the collision had occurred and she had arrived on the scene. Nevertheless, she was adamant in her evidence, which was not shaken in cross-examination, that the impact did not occur wholly within the westbound lane in which she had been travelling. 24 At [27] of his judgment his Honour observed that Mr Woodward had reviewed the statements of the various witnesses in his report and had attempted to conclude from them the most logical and likely circumstance of the accident. Thus in his cross-examination the following exchange took place (at Black 93-94): "Q. You've based your opinion to a large extent on the statements of other witnesses? Haven't you? A. No I based them on it and I've also discarded a lot of the information about the witnesses." 25 His Honour summarised the evidence contained in Mr Woodward's report relating to the marks found on the roadway in the following terms: "28. ….He [Mr Woodward] criticised the police crash investigation for incorrectly stating that the gouge mark indicated a point of impact. Mr Woodward saw a video taken by the police showing the gouge mark. He said that Constable Castles tried to convince him that the Celica made it. Mr Woodward said that gouges can be described as an area of roadway where material has been removed by strong metal components being forced down onto the road. He said with crash investigation it was important to determine the shape of the gouge and to examine the underside of the vehicles involved. He was given a number of photographs of the scene. He said photograph 9 in his report showed 'the mark in relation to the station sedan where it clearly was located moving across the westbound lane'. In relation to photograph 7, he said this showed a gouge made by the Ford and not the Toyota. He came to this conclusion because he found fragments of white paint in the gouge, as well as white enamel on the road. He said the direction of travel of the vehicle that made the gouge could be determined by the striations at the lowest part of the gouge. He also referred to a scratch on the road he thought had been made by some light component of the bodywork of the Ford as it moved across the road. He said, "Its proximity to the continuous painted lines leaves no doubt whatsoever that the collision occurred on the opposite side of the painted line, that is, in an eastbound lane." 26 In amplification of his Honour's summary of Mr Woodward's evidence, it is to be noted that when referring to photograph 10 in his report (being a close up photograph of the primary gouge mark) Mr Woodward opined in para 6.10 of his report that it "clearly indicated that it was made by the disabled Ford [the appellant's vehicle] and not by the Toyota [the first respondent's vehicle]. Firstly fragments of white paint can been seen in the gouge as well as chips of white enamel on the road. The direction of travel of the vehicle that made the gouge can be seen by the striations at the lowest part of the gouge (maximum force of the vehicle) and the shape and attitude of the base material on the eastern edge of the gouge." 27 In paragraph 6.11 of his report Mr Woodward referred to the scratch marks which straddled the westbound and eastbound overtaking lanes, observing that they "would have been made most likely by some light component of bodywork of the Ford as it moved across the road. Its proximity to the continuous painted line leaves no doubt whatsoever that the collision occurred on the opposite side of the painted line, that is, in the eastbound lane." 28 Mr Woodward then noted that a gouge mark could either be a chip, a chop or a groove and was not to be confused with a road scratch or road scrape. He acknowledged that a gouge mark could be helpful in allowing crash investigators to determine the trajectory of a vehicle after a crash and might be of help in determining the point of maximum engagement of two vehicles during a crash. In para 6.14 of his report he said this: "A chip, on the other hand, often resembles the mark that would have been made by the violent downwards movement of a rigid metal component striking the road surface, such as could be envisaged if a pick or mattock was slammed heavily into the surface. Chips usually occur at the point of maximum engagement of two vehicles and therefore mark the point on the road where the corresponding part of the vehicle digs into the surface at the moment maximum engagement took place." 29 In his oral evidence in chief (at Black 79), Mr Woodward stated that given the conditions under which the subject collision occurred and in light of the physical evidence, he was not able to determine the point of impact. When asked what he would need to determine the point of impact he responded: "A dry day and something positive in the nature of a gouge with material belonging to the gouge in the vicinity." It does not appear that it was suggested to him in cross-examination that the primary gouge mark so qualified. 30 Although in cross-examination Mr Woodward denied that the primary gouge mark looked as if it was fresh (Black 89), this appears to be at odds with his statement in para 6.10 of his report that the gouge mark was made by the appellant's vehicle. If so, it was clearly fresh. He further acknowledged that a gouge mark could be helpful in determining the precise place of maximum engagement and that it could indicate the point of impact between two vehicles (Black 90S-Y). He further accepted that a chip mark was less than a gouge mark and a scratch was less than a chip mark. 31 At Black 93, after accepting that the primary gouge mark was contained wholly within the westbound lane, the following exchange with Mr Woodward occurred: "Q. Would you agree that the presence – I withdraw that – and that mark could have been caused by the application of the undercarriage of a vehicle or vehicles couldn't it? A. With qualifications yes. Q. And assume for a moment there was evidence that the defendant's vehicle at all times before the collision was present only in the west bound lane. That's the first assumption. The second assumption was that the gouge mark was not present on the road before the collision. Based on those two assumptions it would indicate that the point of impact occurred in the west bound lane wouldn't it? A. No it would indicate that the person who said that was totally wrong." The last answer in the above exchange appears at the very least to be unresponsive. 32 I turn now to Mr Keramidas' report. At page 29 of his report Mr Keramidas commenced his assessment of the physical evidence, having referred in extenso to the evidentiary statements made to the police by the various witnesses including Mrs Bach. The key areas of physical evidence he considered were first, the marks on the roadway; second, the damage to the two vehicles; and third, the rest positions of those vehicles. 33 Under the heading "Marks on the Roadway", he made the following observations: As the road surface condition at the time of this accident could be described as saturated with water, it would not be likely that any tyre marks (in the form of skid marks) would be evident on the road surface. What would be expected to be evident are gouges and/or scrape marks from the vehicles, both at impact and through to rest. Indeed, the Police identified a number of such marks. Technically speaking, there is a difference between 'gouge marks' and 'scrape marks'. Gouge marks relate to deep penetration of the road surface, while scrape marks relate to an abrasive contact between a vehicle component and the road surface, but not sufficient it displace road material. In this particular case, there is one significant gouge mark identified by Police in the westbound lane, and a series of light scrape marks near the centre of the roadway where the east and west bound lanes meet. In the field of collision reconstruction, gouge marks are considered as significant physical evidence of features, as they tend to indicate a point of maximum engagement between two vehicles at impact. The reason for this is that in order to penetrate the road surface and remove road surface material, there needs to be a significant downward force application so as to cause the scarring. Such downward forces generally occur during the impact phase, and in particular at a point known as 'maximum engagement', where the vehicles have crushed to their maximum penetration and therefore commence more significant impact force-related movements (such as downwards) to form a gouge. Gouging can still occur outside the immediate area of maximum engagement, however this generally tends to be very narrow 'gouge lines' formed by sharp, solid vehicle componentry, formed during post-impact motion. By contrast, scrape marks formed by components of a vehicle, potentially of similar construction to those forming gouge marks, indicate a much lighter weight acting on that component, thereby allowing the component to effectively slide over the road surface without excessive downward force, resulting in minimal groove depth. 34 After referring to the photographs, including photograph numbered 10 in Mr Woodward's report being a close-up of the primary gouge mark, Mr Keramidas opined that "it appeared to be fresh, was significant in terms of its size and depth and would, in his opinion, be entirely consistent with an impact gouge." 35 Mr Keramidas then referred to the scrape marks which he described as being "light gouges" and upon which Mr Woodward had placed significance, as they straddled the separation line between the westbound lane and eastbound overtaking lane. By comparing them he opined that the force required to create the primary gouge mark would be far greater than that required to form the second, lighter gouge mark which he described as a scrape mark. In addition to the primary gouge and scrape marks on the road surface, there was some furrowing on the southern side of the sealed surface of the westbound lane leading to the rest position of the appellant' vehicle. That furrowing had been labelled by the police in their sketch diagrams as "gouges". As to those marks Mr Keramidas observed: "These marks (which are called furrow marks because they penetrate a soft surface as opposed to a gouge mark on a hard surface) depict the post-impact trajectory of the Ford once it left the road surface, and are diagrammatically depicted in the enclosed Reconstructed Scene Diagram. These markings are important, in that they identify the vehicle's direction of path post-impact as well as identifying that the gouge mark within the westbound lane did not exhibit the same orientation as the furrow marks. Therefore, quite apart from the significant size and depth of the gouge mark, it would be inconsistent with having been formed during the vehicle's post-impact trajectory." 36 Under the heading "Vehicle Damage" Mr Keramidas dealt with the damage to the two vehicles in some detail. He noted that the damage profiles of both vehicles provided, in addition to the road scarring, an indication of the likely impact orientation of the vehicles which in turn provided an indication of the likely area of impact. 37 After referring to the rest positions of the two vehicles, Mr Keramidas then turned to the reconstruction of the impact dynamics. Having determined the dynamics of the collision from the point of first contact between the vehicles through to maximum engagement during the impact phase, he then analysed his Figure D which presumed the point of impact between the two vehicles to be in the eastbound overtaking lane as alleged by the first respondent. He opined that that scenario was unlikely as it failed to satisfy the space requirements for the first respondent's Toyota, the position of the various gouge marks and to some extent the rest positions of the two vehicles. 38 Mr Keramidas explained the first of these matters as relating to the witness accounts that there was a coal truck travelling in the eastbound lane effectively beside the first respondent's vehicle on approach to impact. As the rear of the Toyota entered into that lane during the first respondent's breaking or manoeuvring process, it would necessarily have come into contact with the coal truck positioned in that lane had the accident occurred in the eastbound overtaking lane. 39 He then continued in these terms: "In addition, an impact in Lane 2 [the eastbound overtaking lane] would not allow for the formation of the gouge mark in the westbound lane (even as a post-impact mark from the Ford), nor would it allow for the generation of the scrape marks evident in the vicinity of the lane markings separating the east and westbound lanes. If the scrape marks had been generated by the Toyota, then its rest position could not have ended up on the northern side of the roadway, but rather should have been in the southern portion of the roadway. By contrast, if impact had occurred within the westbound lanes (as diagrammatically depicted in the figure below) then all of the above criteria (including space, relative position of gouge marks and rest positions) would be satisfied." 40 Mr Keramidas finally reviewed Mr Woodward's report. With respect to paras 6.07-6.14 of that report (to which I have referred in [25]-[27] above), he said: "Mr Woodward appears to have some disagreement with the Police assessment regarding what inference could be drawn from the large gouge mark identified in the westbound lane. He proceeds to suggest that this mark may have been made during the Ford's post-impact motion, and prefers instead the 'scratch' mark near the centre-line of the roadway as identifying that the Ford has come from a position near that mark. An examination of the relative position of the gouge and scrape mark, as well as the rest position of the Ford and furrow marks leading to it, clearly indicates that Mr Woodward's hypothesis is impossible. While it is not the author's position to defend the Police position regarding their assessment of the physical evidence, in this particular instance the present author agrees with that assessment, and is in a position to demonstrate both the physics and the logic of the argument as to why the large gouge mark does indicate the point of maximum engagement between the two vehicles (as outlined earlier in this report)." 41 In cross-examination Mr Keramidas acknowledged that in order to overcome the witness accounts he needed to have strong objective physical evidence. When questioned with respect to what he had referred to as the "scratch marks" which straddled the separation line between the westbound land and the eastbound overtaking lane, the following exchange occurred (Black 146): "Q. I understands that; but the presence of it could be consistent with the defendant's vehicle in fact being at around the centre line or in the centre lane at some time during the impact? A. If we were to exclude all of the other evidence that would be possible, yes. Q. If you were to include this evidence I suggest to you that the conclusion must be that the white care and the blue car must at some stage been at or near the centre lane or around the centre lines? A. I disagree with you entirely; that is impossible. " 42 Thereafter Mr Keramidas was subjected to a vigorous cross-examination but I think it is fair to say that he did not retreat from the conclusions reached in his report as to the location of the point of impact between the two vehicles. The reasoning of the primary judge 43 In the light of the evidence, the significant aspects of which relevant to this appeal I have sought to record above, the primary judge was faced with a difficult task. First, he had the evidence of each of the appellant and the first respondent, neither of whom was moved in cross-examination. Second, he had the evidence of a Mr Watt that corroborated the appellant's evidence to a degree namely, that he was overtaken by an unidentified Ford utility. Third, there was the significant evidence of Mrs Bach who also did not retreat in cross-examination. Fourth, there was Mr Woodward's factual and expert evidence the former of which related to the issue of whether the appellant was telling the truth when he said that he did not overtake any vehicles prior to the collision (Mr Woodward having given evidence that he was overtaken by the appellant) and the latter to the issue of the point of impact of the collision. The objectivity of his expert evidence was in issue and was the subject of an adverse finding by his Honour. Fifth, there was the police officers' evidence which did not really advance the critical issues. 44 Finally, and significantly, there was the evidence of Mr Keramidas whose objectivity and expertise were not in issue and who had in a very detailed report containing a significant amount of analysis based on the physical objective evidence, concluded that the point of impact between the two vehicles was in the westbound lane - a position from which he did not resile in cross-examination. Furthermore, in his report he had analysed Mr Woodward's opinion and had sought to demonstrate that it was in error. Mr Woodward did not tender any written or oral evidence in reply to that criticism. 45 If he was to find for the first respondent, his Honour was essentially faced with having to give determinative weight to Mrs Bach's evidence supported as it was by that of the first respondent and, to a point, by that of Mr Woodward. However, in doing so, it was necessary for his Honour, even if he was not prepared to accept the appellant as a reliable and truthful witness, to rationally explain why he rejected Mr Keramidas' evidence based on the objective physical evidence at the scene. The issue in the appeal is whether in fact he did so. The structure of the primary judge's judgement 46 After an introduction his Honour noted (at [4]) that the appellant's claim against the second respondent was based upon his evidence together with inferences said to be available from Mr Watt's evidence and the physical evidence of the marks on the roadway observed by the police officers and "interpreted by the expert witness, Mr Keramidas". 47 His Honour then summarised the appellant's evidence in [5]-[8] after which he then referred in [9]-[10] to the evidence of Sergeant Cooper and the appellant relating to the unidentified vehicle. 48 As I have indicated, the primary judge referred to Mrs Bach's evidence in [13]-[19] and that of Mr Woodward in [20]-[30]. In the course of summarising the evidence of those witnesses his Honour's only finding was in [19] where he accepted Mrs Bach's evidence including her observations recorded in the statement made to the police immediately after the accident. 49 After the recitation of the evidence in the first 30 paragraphs of his judgment, his Honour made the following findings: "31. In my opinion, the weight of the evidence leads me to the following findings: (1) Mr Young's version of the accident cannot be accepted. (2) I accept the version of Mrs Bach and Mr Woodward where those versions contradict the evidence of Mr Young. (3) I find that Mr Young overtook vehicles on Picton Road, including the vehicle driven by Mr Woodward and the vehicle driven by Ms Bach before colliding with the plaintiff's vehicle. (4) I find that Mr Young's vehicle was travelling west in the eastbound overtaking lane on its incorrect side of the road immediately before the collision with the plaintiff. (5) I find that each vehicle braked when a collision appeared inevitable and a collision occurred near the dividing line between the eastbound overtaking lane and the westbound lane. (6) I reject the evidence of Mr Young that he did not overtake any vehicles after he entered Picton Road. (7) I find that as Mrs Cesta-Incani commenced to overtake the coal truck the eastbound overtaking lane was clear for her to do so and that Mr Young pulled out to overtake the car in front of him after Mrs Cesta-Incani had commenced to overtake the coal truck. (8) I find that Ms Bach noted the registration number UBB as it passed her on Picton Road and confirmed it by her observations of Mr Young's vehicle in the ditch after the accident. (9) I find that the weather conditions were inclement with fog and rain. (10) I find that the statement of Mr Watt is consistent with the observations made by Ms Bach about the overtaking manoeuvres performed by Mr Young. (11) I find that there is an inconsistency between the registration numbers provided by Mr Young to the police and that which he gave in evidence. I find that more likely than not a Holden Utility did not cause or contribute to the plaintiff colliding with Mr Young's vehicle. 32. I am of the opinion that Mr Young's evidence cannot be accepted as accurate or truthful and that his overtaking manoeuvre westbound on Picton Road when the plaintiff was also overtaking, as she was entitled to do, caused the accident and the plaintiff's injuries." 50 It is to be noted that his Honour made no reference in his findings to Mr Keramidas' evidence: in fact, he made no reference to that evidence at all in the paragraphs in his judgment leading up to those findings. 51 Having made the findings referred to, on the basis that he was found "to be incorrect on this analysis" his Honour proceeded to deal (in [33]) with the issue of "due search and enquiry" which was relevant only to the claim against the second respondent. In what appears to be an afterthought under the heading "The marks on the roadway" he observed: "34. The first defendant [the appellant] said that if it was accepted that the collision occurred as a consequence of Mr Young's negligence then the court should find contributory negligence. Mr Keramidas accepted during cross-examination that if the court accepted the evidence of the witnesses about the event then his scenario must be wrong. Mr Keramidas had sought to argue that the gouge marks observed by the police at the scene were indicative that the collision occurred in the westbound lane. It was upon this evidence that it was submitted on behalf of Mr Young that his version that he was always in the westbound lane should be accepted. As I have found, Mr Young was overtaking immediately before the collision. It is also clear that both the plaintiff and Mr Young sought to avoid the collision at the last moment by applying their brakes and swerving. In my view, despite the analysis of Mr Keramidas it is not possible to say with any accuracy precisely where the point of impact occurred and that the gouge mark shown on the photographs is not conclusive as to the identification of the precise point of collision. There were marks on both the eastbound and westbound lanes and it was quite clear that the vehicles collided with some force, moving them from their line of travel some distance. This was especially the case with Mr Young's vehicle . 35. I accept the evidence of the plaintiff. She said that she was overtaking the coal truck and when she did so she saw a car travelling west in the lane to her right (the westbound lane) and at that point when she was overtaking the coal truck that vehicle came into her lane. She tried to swerve to miss him but could not do so. 36. Although Mrs Cesta-Incani was cross-examined vigorously about recollections I formed the opinion that she was not shaken on her recollection. She was very seriously injured but in my opinion sought to do her best to recall the events in a matter of fact and straightforward way. I accept her as a reliable witness. 37 Accordingly, I am of the view that the marks on the roadway had little relevance to the determination of the issue in this case . I am satisfied that the plaintiff was overtaking the coal truck and as she was doing so the defendant sought to overtake the vehicle tin (sic) front of him when it was unsafe to do so and caused the collision." (Emphasis added) 52 Although not referred to in his findings in [31] of his judgment, his Honour's acceptance of the first respondent's evidence is implicit in those findings given his rejection of the appellant's evidence and his acceptance of the factual evidence of Mrs Bach and Mr Woodward. Did the primary judge comply with the judicial obligation to give reasons? 53 Although the appellant advanced a number of grounds of appeal, in oral argument he accepted that the critical issue was whether the primary judge had complied with the judicial obligation to provide a rational and reasoned decision in rejecting the appellant's case at trial. In my view, and this was common ground on the appeal, his Honour was required to engage with Mr Keramidas' evidence and to provide a rational explanation for his rejection of his analysis of the collision with particular reference to the objective physical factors including, in particular, the primary gouge mark. 54 The relevant principles are not in issue. They were relevantly summarised by Ipp JA, with whom Bryson JA and Stein AJA agreed, in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 135-136; [2004] NSWCA 174: "56 A miscarriage of justice can arise where what is and is not disclosed in a judge's reasons is a breach of the principle that justice must not only be done but must be seen to be done: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431, per Mason P 57 As McHugh JA explained in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, one of the purposes served by a judicial decision is that: '[I]t enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision.' Accordingly, as McHugh JA said (at 278-279): '…[A] judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily can not be a judicial decision; for the hallmark of a judicial decision is the quality of rationality…'. 58 In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [2000] 1AIIER 373, which was followed in Moylan v Nutrasweet Co [2000] NSWCA 337 , Henry LJ said (at 381-382; 377-378) in regard to the general duty of a judge to give reasons for his or her decision (particularly in relation to expert evidence): '(1)The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know ... whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.' 59 It is, of course, well settled that a judge does not need to refer to all the evidence in the proceedings or to indicate which of the evidence is accepted or rejected. The extent of the duty to give reasons depends upon the circumstances of the individual case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (per Samuels JA, with whom Clarke JA and Hope AJA agreed). But it is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party. The proper administration of justice requires reasons to be given in a form, firstly, that will enable the losing party to understand properly the grounds upon which the case was lost, and, secondly, that will not, effectively, frustrate the losing party's right of appeal: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667." 55 Of particular significance in the present case is the conflict between the two experts, Mr Woodward on the one hand and Mr Keramidas on the other. In Wiki, Ipp JA referred to the resolution by a trial judge of such a conflict in the following terms: "61 But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise. 62 In Moylan , Sheller JA (with whom Beazley JA and Giles JA agreed) referred to and adopted much of the reasoning of Henry LJ in Flannery . His Honour quoted the following remarks of Henry LJ (reported in Flannery (at 381-382; 377-378) with approval: 'It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: See Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1, 77-78: "In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ... " And: '[w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other.' 63 … 64 In Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321, in a judgment with which both Meagher and Beazley JJA agreed, Sheller JA again referred to Flannery and Eckersley v Binnie (1988) 18 Con LR1with approval and applied what had been said in those cases. In Archibald v Byron Shire Council (2003) 129 LGERA 311, Sheller JA (with whom Beazley JA agreed) adopted the same approach. His Honour said (at 323, [54]): 'Where a dispute, such as this one, involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the parties are entitled to have the judge enter into the issues canvassed before the court and to an explanation by the judge as to why the judge prefers one case over the other. This is particularly so where there is disputed expert evidence. ….' See also Papadopoulos v New South Wales Insurance Ministerial Corporation [1999] NSWCA 116 at [17]. 65 … 66 … 67 … 68 As I have explained, it may be entirely appropriate for trial judges to rely on matters of credibility in determining disputes between experts. Almost invariably the trial judge will have an advantage from having heard the totality of the evidence and the individual witnesses who testified at the trial. These are matters that are crucial to the Court's decision on appeal: Fox v Percy (2003) 197 ALR 201; Pledge v Roads and Traffic Authority (2004) 205 ALR 56. Nevertheless, where it is apparent from the judge's reasons that there has been a failure to follow the precepts to be adopted when resolving expert disputes as laid down in Soulemezis , Moylan and Flannery , there is nothing in Ahmedi that requires an appellate court to refrain from intervening. " (Emphasis added) 56 Essentially, a judge at first instance must engage with the case presented by each of the parties: Whalen v Kogarah Municipal Council [2007] NSWCA 5 at [40]; The Nominal Defendant v Kostic [2007] NSWCA 14 at [56]. As Meagher JA said in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443: "There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it … Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to." 57 Further, as Ipp JA pointed out in Kostic at [59], "…Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his or her findings as to how he or she comes to accept one over the other." 58 As Hayne J also observed in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1835 [130]; [2005] HCA 57, the failure of a trial judge to examine all of the material relevant to a particular issue is an error in the process of fact finding. 59 In his reasoning process the primary judge referred to Mr Woodward's evidence with respect to the gouge marks in [28] of his judgment which I have recorded in [24] above. Although he did not expressly accept that evidence, he may have implicitly done so given that his findings set out in [31] of his judgment were, so he asserted, based on "the weight of the evidence". Presumably this was a reference to the evidence which he had set out in the preceding paragraphs of his judgment. 60 Nevertheless, three points can be made. First, his Honour did not indicate any reasons, let alone rational reasons, as to why he accepted Mr Woodward's evidence (assuming he did) with respect to the marks found on the roadway and which, by implication, involved the rejection of the contrary evidence of Mr Keramidas. Second, any implicit acceptance of Mr Woodward's expert evidence (as distinct from his evidence with respect to his being allegedly overtaken by the appellant's vehicle prior to the collision) is somewhat at odds with his finding (in [29]) that Mr Woodward did not remain objective about the appellant. As I understand that finding, his Honour was expressing the view that Mr Woodward was at least partisan, if not unduly partisan, to the first respondent. Third, it would appear that demeanour did not play any part in his Honour's findings with respect to his acceptance of the evidence of either Mr Woodward, Mrs Bach or the first respondent. And what is more, demeanour does not seem to have played any part in his rejection of the version of the accident given by the appellant. 61 The case for the appellant was fundamentally based upon the independent, unbiased and non-partisan expert evidence of Mr Keramidas. Even accepting that the expert evidence (in contra-distinction to the factual evidence) of Mr Woodward was not partisan and otherwise reliable, his Honour was faced with a dispute between experts which involved "something in the nature of intellectual exchange, with reasons and analysis advanced on either side" and which canvassed issues into which his Honour was required to enter in order to explain why he preferred Mr Woodward's expert evidence over that of Mr Keramidas: see Wiki at 137[62]. 62 To adopt the language of Bingham LJ in Eckersley v Binnie recorded by Ipp JA in Wiki at 137 [62], the coherent reasoned opinion expressed by Mr Keramidas was required to be the subject of a coherent reasoned rebuttal by the primary judge unless it could be discounted for other good reasons. 63 Given the weather conditions at the time, Mrs Bach's agreement that visibility was poor (Black 11M-N) and the speed at which the vehicles in the vicinity were travelling, it cannot fairly be said that the strength of Mrs Bach's evidence was such that its acceptance by the primary judge entitled him to discount without adequate explanation Mr Keramidas' evidence based as it was on the objective physical conditions resulting from the collision and his detailed scientific analysis thereof. 64 The primary judge's rejection of Mr Keramidas' evidence is confined to his observations in [34] of his judgment which I have set out in [50] above. His Honour there asserts that Mr Keramidas agreed during cross-examination that if the court accepted the evidence of the witnesses about the event then his scenario must be wrong. This was a reference to Mr Keramidas' evidence (at Black 140U-V) in the following exchange: "Q. So that if in the light of all the evidence they're found to be right, your version must be wrong or your scenario must be wrong? A. Necessarily that follows." (Emphasis added) 65 The primary judge regrettably did not refer to the fact that Mr Keramidas' concession upon which his Honour relied was based on a finding that the witnesses' version was wrong "in light of all the evidence". It is clear that Mr Keramidas was not conceding that if only the evidence of the first respondent, Mrs Bach and Mr Woodward's factual observations were accepted, that it necessarily followed that his expert evidence should be rejected. His Honour clearly erred in the manner in which he sought to deflect Mr Keramidas' evidence based upon the gouge marks in the roadway. 66 But the critical part of the primary judge's reasoning is in the rejection of Mr Keramidas' analysis in the sentences of [34] which I have emphasised in [50] above. In my respectful opinion his Honour's remarks do not approach a coherent reasoned rebuttal of Mr Keramidas' expert testimony; nor do they constitute the engagement by his Honour in the issues canvassed by Mr Keramidas, let alone a rational and reasoned explanation as to why his analysis should be rejected. 67 In my opinion, therefore, the primary judge failed in his judicial obligation to give reasons which were capable of leaving the appellant in no doubt as to why Mr Keramidas' expert evidence was rejected. That evidence underpinned the appellant's case and, if accepted, corroborated his own evidence that the collision occurred in the westbound lane. The manner in which his Honour dealt with that evidence in [34] of his judgment gave the impression that it was a matter which he had overlooked when he made his findings in [31] and [32], thus necessitating that some remarks be added more or less as a postscript so as to give the impression that he had given proper consideration to Mr Keramidas' evidence and had provided a coherent reasoned rebuttal of it. 68 The primary judge's final observation in [37] that the marks on the roadway had little relevance to the determination of the issue in the case merely underscores the inadequacy of his Honour's reasoning and fact finding process. Conclusion 69 For the foregoing reasons in my opinion the primary judge's reasons were so inadequate as to constitute a miscarriage of justice entitling this Court to intervene. The Court should do so by setting aside his Honour's verdict on the issue of liability in favour of the first respondent and against only the appellant and by ordering a new trial with respect to that issue. 70 Accordingly, I would propose the following orders: (a) With respect to the notices of motion filed by the appellant on 19 April 2007 and by the first respondent on 9 May 2007, grant an extension of time for the filing and serving by the appellant of an ordinary summons for leave to appeal and by the first respondent of an ordinary summons for leave to cross-appeal. (b) Direct the appellant and the first respondent to file and serve their respective summonses for leave to appeal and leave to cross-appeal within 7 days from the date of these orders. (c) Grant leave to the appellant to appeal and to the first respondent to cross-appeal on condition that the notices of appeal and of cross-appeal are filed within 7 days from the date of these orders. (d) Appeal and cross-appeal allowed. (e) Set aside the verdict on the issue of liability in favour of the first respondent entered by Delaney DCJ on 26 October 2006. (f) Remit the proceedings to the District Court for a new trial on the issue of liability and, if necessary, damages. (g) The respondents to pay the appellant's costs of his summons for leave to appeal and of the appeal but the first respondent to have with respect to the appeal a certificate under the Suitor's Fund Act 1951 if otherwise qualified. (h) Each party to pay his, her or its costs of the summons for leave to cross-appeal and of the cross-appeal. 71 HOEBEN JA: I agree with Tobias JA and the orders he proposes. ********** 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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