New South Wales Court of Appeal CITATION: Zurich Australian Insurance Ltd v Raman; Gyimah v Mackay [2009] NSWCA 221 HEARING DATE(S): 20 July 2009 JUDGMENT DATE: 10 August 2009 JUDGMENT OF: Ipp JA at 1; McColl JA at 166; Handley AJA at 167 (a) Mr Gyimah's appeal is upheld. (b) Zurich's appeal is upheld. (c) The orders made by Nield DCJ are set aside. DECISION: (d) The claim by Mr Mackay against Mr Gyimah and the claim by Zurich against Dr Raman are remitted to the Common Law Division of the Supreme Court. (e) Mr Mackay to pay Mr Gyimah's costs of the appeal and Dr Raman to pay Zurich's costs of the appeal. (f) Mr Mackay and Dr Raman to have certificates under the Suitors' Fund Act 1951. (g) The costs of the trial before Nield DCJ are to be determined by the judge hearing the retrial. CATCHWORDS: COURTS AND JUDICIAL SYSTEM - dispute between experts - duty of trial judge to determine whether one expert should be preferred and to make appropriate findings - where trial judge resolved differences between experts by accepting the opinion that accorded with the account of facts given by lay witnesses - fact finding - where trial judge relied upon credibility and demeanor of lay witnesses - whether trial judge failed to have proper regard to certain pieces of objective evidence - whether findings of fact involved a failure to use, or a misuse of the advantage of the trial judge. LEGISLATION CITED: Motor Accidents Compensation Act 1999 Suitors' Fund Act 1951 CATEGORY: Principal judgment Abalos v Australian Postal Commission [1990] HCA 4; (1990) 171 CLR 167 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 CASES CITED: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Insurance Australia Ltd v Dickason [2007] ACTCA 13 Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89 SRA v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 Zurich Australian Insurance Ltd (Appellant CA 40450/08)) PARTIES: Avi Raman (Respondent CA 40450/08) Foster Boaudu Gyimah (Appellant CA 40451/08) Andrew Finlay Mackay (Respondent CA40451/08)) FILE NUMBER(S): CA 40450/08 and 40451/08 K P Rewell SC; R O'Keefe (Appellants CA 40450/08, 40451/08) COUNSEL: A J Stone (Respondent CA 40450/08) R S McIlwaine SC; G J Davidson (Respondent CA 40451/08) Vardanega Roberts Lawyers (Appellants CA 40450/08, CA 40451/08) SOLICITORS: Diamond Conway (Respondent CA 40450/08) McLachlan Chilton (Respondent CA 40451/08) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2547/06 and 705/08 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 10 December 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40450/08 CA 40451/08 DC 705/08 IPP JA McCOLL JA HANDLEY AJA 10 AUGUST 2009 Zurich Australian Insurance Ltd v Avi Raman Foster Boaudu Gyimah v Andrew Finlay Mackay Judgment 1 IPP JA: Two different versions of a motor vehicle incident 2 On 8 June 2003, Mr Andrew Mackay was seriously injured in a motor vehicle incident involving a taxi owned and driven by Mr Foster Gyimah. Mr Mackay brought proceedings in the District Court for damages in negligence against Mr Gyimah, alleging that Mr Gyimah's negligent driving caused his injuries, which were as follows: (1) a laceration to the left side of his scalp; (2) a depressed fracture of the left side (frontoparietal) of his skull; (3) a laceration to the back of his head; (4) a fracture of the back (occipital) of his skull; (5) severe trauma to his brain; (6) a fracture of the facet join at the C6/7 level of his neck; (7) a fracture of his upper left front tooth; and (8) abrasions to the top of his left shoulder. 3 From the time the police first investigated the incident, it was apparent that Mr Mackay's friends and Mr Gyimah were propounding entirely different versions of the circumstances under which Mr Mackay was injured. 4 Mr Mackay suffered serious brain damage in the incident and was unable to recall what occurred. In presenting his case as to liability, he relied (apart from the testimony of an expert, Dr McIntosh) on the evidence of three of his friends, Mr Sean Martin, Mr James Barrett and Dr Avi Raman, who were present when the incident occurred. 5 At the time of the incident, Mr Mackay was 23 years old as was Mr Martin. Mr Barrett was 24 years old. Dr Raman was a medical student at the time (he graduated as a medical practitioner in December 2004). Mr Gyimah was 40 years old. 6 In brief, Mr Martin, Mr Barrett and Dr Raman testified that at about 5.30 am on 8 June 2003 they and Mr Mackay had been passengers in Mr Gyimah's taxi. They had entered the taxi at an establishment in the city and were on their way to Mosman where one of them lived. Before arriving at their destination, Mr Gyimah stopped the taxi at a bus stop near the Big Bear shopping centre on Military Road, Neutral Bay and told them to leave. After the four men emerged from the vehicle, Mr Gyimah suddenly reversed his taxi towards them as they were on the pavement. The taxi struck the kerb and its rear nearside wheel went on to the pavement. Shortly thereafter, Mr Martin, Mr Barrett and Dr Raman noticed Mr Mackay lying seriously injured on the ground. They also saw that a bus stop pole had fallen onto the pavement. It was not in dispute that the rear of the taxi had collided with the pole, causing it to snap near its base and fall to the ground. 7 Dr McIntosh, an associate professor in biomechanics, expressed the opinion that the pole (which weighed 35 kg) had fallen on Mr Mackay's head, and had thereby caused his injuries. 8 Mr Gyimah, on the other hand, testified that when he asked the men to leave the taxi three of the four got out but Dr Raman remained in the front passenger's seat. Mr Martin lent through the driver's window and attempted to strangle Mr Gyimah. At the same time, Mr Mackay and one of the others climbed on to the boot where they began bouncing about. The engine of the taxi was running and Mr Gyimah, in fear of his life, decided to drive away. Dr Raman, however, attempted, physically, to stop him by preventing him from operating the gear lever. A struggle ensued which led to the gear lever, unintentionally, being put into reverse. The taxi shot backwards, struck the kerb, mounted the pavement, and struck the pole. 9 Mr Bailey, a chemical and bio-medical engineer, testified that, in his opinion, Mr Mackay was thrown backwards when the taxi reversed, the back of his head struck the aerial mount on the centre of the back of the taxi's roof (above the rear windscreen) and, when the taxi struck the kerb, he was thrown off the boot on to the pavement where he fell on his upper forehead. In Mr Bailey's opinion, Mr Mackay's injuries were so caused. The action between Zurich and Dr Raman 10 In the middle of the trial, Mr Mackay obtained leave to amend his statement of claim by alleging that, alternatively to Mr Gyimah being the driver of the taxi when he, Mr Mackay, was injured, Dr Raman was then the driver. 11 Zurich Australian Insurance Limited ("Zurich"), Mr Gyimah's third party insurer, thereupon obtained leave to cross-claim, conditionally, against Dr Raman. Zurich relied on s 20 of the Motor Accidents Compensation Act 1999 and alleged that Dr Raman had operated the taxi without the authority of Mr Gyimah or without reasonable grounds for believing that he had Mr Gyimah's authority. Zurich sought an order that Dr Raman pay it a sum equal to the whole of any damages it might be required to pay Mr Mackay (as Mr Gyimah's third party insurer). The primary judge's judgment and the appeals 12 Nield DCJ upheld Mr Mackay's claim against Mr Gyimah. Essentially, his Honour believed Mr Mackay's witnesses and rejected the evidence of Mr Gyimah and Mr Bailey. His Honour assessed damages in the sum of $1,771,879.65 and granted judgment and a verdict in favour of Mr Mackay against Mr Gyimah in this amount. 13 His Honour granted a judgment for Dr Raman against Zurich and Zurich's claim against him was dismissed. His Honour ordered Zurich to pay Dr Raman's costs on an indemnity basis because of "the deliberately false bases upon which [Zurich] drew Dr Raman into [Mr Mackay's claim]" (at [161]). 14 Mr Gyimah appeals against the decision that he is liable to Mr Mackay for the damages his Honour assessed. There is no appeal against the assessment of damages. 15 Zurich appeals against the dismissal of its claim against Dr Raman. 16 It is convenient to deal first with Mr Gyimah's appeal against Mr Mackay. The primary judge's reasons 17 His Honour commenced his reasoning process (at [96]) by referring to photographs taken by the police after the incident, which according to him showed tissues on the front and rear passenger seats of the taxi and a tissue box on the rear floor behind the driver's seat. Mr Gyimah had testified that Mr Mackay and his three friends, while inside the taxi, had thrown tissues and a tissue box at each other and at the windscreen. His Honour held (at [98]) that, accepting that to be so, the tissues and tissue box on the front passenger's seat (as his Honour found were shown in one of the photographs) could not possibly have been thrown there by Mr Gyimah's passengers. His Honour found (at [99]) that Mr Gyimah had "deliberately and intentionally spread the tissues" on to the front passenger seat after Dr Raman had left the taxi so as to support what he had told the taxi operator had happened. His Honour concluded (at [100]): "In my assessment this single piece of objective evidence undermines the evidence of the defendant." 18 His Honour then went on (at [101]) to refer to "[a]nother important piece of objective evidence". This evidence referred to two two-way radio calls that Mr Gyimah had made to a taxi operator after the taxi had struck the kerb in which, his Honour observed, Mr Gyimah "twice told the Legion Cabs operator that he had moved his taxi". 19 The judge commented, "In my view [Mr Gyimah's] statements to the operator that he had moved his taxi (which is consistent with the evidence of Mr Barrett, Mr Martin and Dr Raman) and his failure to complain to the operator that one of his passengers had interfered with his driving of his taxi further undermines [his] evidence." 20 Nield DCJ then turned to Mr Gyimah's evidence. He said (at [104]) that he did not accept ten pieces of evidence that Mr Gyimah had given. By inference, these findings supported his rejection of Mr Gyimah's evidence as a whole. 21 Mr Gyimah relied on the evidence of Ms Bodinnar, a former employee of Zurich, who testified that, coincidentally, she had a conversation with Dr Raman on a train going to a football game in which he volunteered information to her about the accident in which Mr Mackay was injured. According to Ms Bodinnar, Dr Raman told her that his "mate" had "grabbed the gear shift" of the taxi involved. Mr Gyimah contended that Ms Bodinnar's testimony undermined that of Dr Raman. Nield DCJ rejected this submission, however, and refused to accept Ms Bodinnar's evidence in preference to that of Dr Raman. 22 Nield DCJ then turned to the expert testimony of Dr McIntosh and Mr Bailey. His Honour accepted Dr McIntosh's evidence and rejected that of Mr Bailey on the following grounds (at [123]-[124]): "My acceptance of the evidence of Mr Barrett, Mr Martin and Dr Raman as to where they were when the taxi was suddenly driven backwards in reverse gear and my rejection of the evidence of the defendant that the plaintiff was sitting on the taxi's boot lid when it was suddenly driven backwards in reverse gear results in my acceptance of the conclusion of Associate Professor McIntosh and the rejection of the conclusion of Mr Bailey as to the cause of the plaintiff's skull fractures." In any event, I reject Mr Bailey's conclusion because, assuming that: (1) the plaintiff was seated on the taxi's boot lid with his feet off the ground when the taxi was suddenly driven backwards in reverse gear; (2) he was thrown backwards by the sudden movement of the taxi; (3) the back of his head struck the aerial mounting on the taxi's roof; and (4) He was thrown forward when the back wheels of the taxi struck the gutter; I think that: (1) if he had not been rendered unconscious by his head striking the taxi's roof, he would have put his hands out in front of him to break his fall onto the footpath (and the absence of abrasions or grazes to the palms of his hands shows that this did not happen); and (2) if he had been rendered unconscious by his head striking the taxi's roof, he would have suffered abrasions or grazes to his face when his head struck the footpath." 23 His Honour concluded: "I am convinced, accepting, as I do, that the plaintiff was standing on the footpath behind Mr Barrett and Dr Raman when the defendant suddenly and unexpectedly drove his taxi backwards in reverse gear, causing it to strike the bus-stop pole, snapping it at its base, that the only logical conclusion to draw is that the bus-stop pole, after it had been snapped off at its base, struck the left frontoparietal region of the plaintiff's skull, causing the frontoparietal skull fracture, and resulting in his falling backwards and striking the back of his head on the footpath, causing the occipital skull fracture. I am satisfied that the defendant drove his taxi backwards in reverse gear due to his negligence in putting the gear lever into the "Reverse" position rather than the "Drive" position and depressing the accelerator pedal. I am satisfied that the plaintiff did not do anything which caused or contributed towards the defendant driving his taxi backwards in reverse gear or which caused or contributed towards the injuries he suffered." Mr Gyimah's grounds of appeal 24 Mr Gyimah's grounds of appeal, as argued by Mr Rewell SC (who together with Mr O'Keefe appeared for Mr Gyimah and Zurich), fall into four categories, namely, arguments that: (a) His Honour wrongly preferred the expert opinion of Dr McIntosh to that of Mr Bailey. (b) His Honour wrongly attributed significant weight to the two pieces of evidence that his Honour (erroneously, according to Mr Gyimah) regarded as objective (these pieces of evidence being the tissues and tissue box on the front seat and the radio transcripts that I have mentioned). (c) His Honour wrongly refused to accept that the testimony of Ms Bodinnar undermined that of Dr Raman. (d) His Honour did not adequately deal with the credibility of the lay witnesses and wrongly failed to have proper regard to certain objective pieces of evidence. The conduct of Messrs Mackay, Barrett, Martin, and Dr Raman prior to the incident with the taxi 25 Before going to Mr Gyimah's arguments, it is convenient first to describe, in more detail, the sequence of relevant events. I shall commence with the conduct of Messrs Mackay, Barrett, Martin, and Dr Raman in the 11 hours prior to the incident whereby Mr Mackay was injured. 26 During the afternoon of 7 June 2003, Mr Mackay arrived in Sydney, having flown from New Zealand. He went to a hotel where, commencing at about 6.00 pm, Mr Martin had two schooners of beer (Black 280), Mr Barrett a few drinks of beer (Black 19) and Dr Raman three schooners of beer (Black 83). The beer so drunk was all full strength. From the hotel, the four men went to Telstra Stadium to watch a football game involving the Sydney Swans. During the game, Mr Martin drank about one schooner of full strength beer per quarter (Black 281), Mr Barrett drank more beer, and Dr Raman said that he had about three schooners (Black 84). According to Mr Barrett, after the game each of the men, at the stadium, had two or three more schooners (Black 20). 27 The four men then went by train to an establishment known as Scruffy Murphy's. There, Mr Martin continued to drink schooners of beer (Black 282) and may have had something stronger (Black 283). Mr Barrett said that at Scruffy Murphy's they started with beer but then moved on to vodka with Coca Cola (Black 22). Dr Raman said that at that stage he was drinking vodka and Coca Cola (Black 85). 28 At Scruffy Murphy's, Mr Barrett was involved in a fight with others and received a laceration to his forehead (Black 23). The men left Scruffy Murphy's at about 5:00 am. They had been drinking on and off since about 6:00 pm the previous day. 29 In his police interview on 29 June 2003, Mr Barrett said that when they got into the taxi at about 5:00 am he had had "quite a few drinks" (Blue 97). Later, he said that he was "pretty inebriated" (Blue 98). He told the police that his memory was "a little hazy" (Blue 97). He had difficulty in remembering what had occurred in the taxi. He agreed that his memory of the event was "very substantially impaired" by the amount he had had to drink (Black 69). 30 Mr Martin, in his police interview of 29 June 2003, said (at Blue 131 and 139) that he was "reasonably intoxicated". According to Mr Martin there had been "pushing and shoving" in the back seat. He agreed that they had been throwing tissues about (Black 286). 31 Mr Martin said that "the taxi stopped to kick us out, I had been giving him a bit of lip" (Blue 124). Dr Raman said that the taxi driver shouted at them to get out of the taxi (Black 128). Indeed, Dr Raman said (at Black 94) that he did not think that the taxi driver's behaviour in requiring the men to leave the taxi at the Big Bear Shopping Centre was unjustified. 32 After the accident, none of the men approached Mr Gyimah to remonstrate with him because of his conduct and to ensure that he did not leave the scene (Black 65). 33 According to a certificate of analysis of a sample of Mr Mackay's blood taken at 6:20 am on the day of the incident, he had a blood alcohol concentration of 0.090 g of alcohol in 100 ml of blood. His Honour said that such a blood alcohol concentration "would be consistent with being moderately affected by alcohol" and pointed out that a police officer, Sergeant Smith, so assessed Mr Barrett, Mr Martin and Dr Raman (at [111]). His Honour did not refer to the evidence of drinking that I have recounted. The parties' respective versions and the objective facts 34 Mr Mackay's case was described by Nield DCJ as follows (at [85]): "The plaintiff's case, as revealed by the evidence of Mr Barrett, Mr Matin and Dr Raman, is that, after the defendant had stopped his taxi at the bus stop in the bus lane at the Big Bear Supermarket on Military Road at Neutral Bay and had told them (the plaintiff, Mr Barrett, Mr Martin and Dr Raman) to leave the taxi, they left the taxi and they were behind the taxi, when the defendant, alone in his taxi, negligently engaged the taxi's reverse gear and then depressed the taxi's accelerator, causing the taxi to suddenly travel backwards and to strike the 'bus-stop' pole, which, in turn, struck the plaintiff." 35 I do not propose to set out a more detailed account of the version of Mr Mackay's witnesses. Their account, by its nature, was much simpler than that of Mr Gyimah, although it differed considerably in the detail of the surrounding circumstances. As the primary judge noted, it had a "constant central theme", namely, that they and Mr Mackay had left the taxi before it reversed. 36 Mr Gyimah testified that as he proceeded towards the Harbour Bridge the men in his car were arguing among themselves (Black 421). He said that he politely asked them to keep their voices down. This evoked an aggressive response and one of the men said to him, "Why don't you go back to your jungle in Africa? You don't belong here anyway". Mr Gyimah, who is an African from Ghana, ignored these statements. 37 Mr Gyimah said that, as they passed over the Harbour Bridge, one of the men at the back pulled out the tissues from a tissue box, and the men threw the tissues and the box around the taxi. At times, the box hit the front windscreen. He asked them to stop. He told them that they were putting their lives and his in danger by interrupting his driving and making it difficult for him to see (Black 422). 38 As Mr Gyimah turned right into Military Road, the men were still throwing tissues and, at this stage, were kicking the back of his seat. He pulled over on Military Road at a service station and, because he was panicking, hit the gutter with his rim (Black 423). He asked them to behave and stop what they were doing. One of the men at the back replied, "Okay, we'll stop". Mr Gyimah then continued to drive on. 39 After about 10 to 15 metres, one of the men started to kick the back of his seat again and called out, "Nigger go home. Nigger go home". Mr Gyimah thereupon pulled to the left hand side of the road, put the vehicle into parking gear with the engine still running, and asked the men to get out of the taxi (Black 423). 40 At this stage, there is a body of evidence that tends to confirm Mr Gyimah's account. On their own evidence, the men were inebriated and their behaviour in the taxi was loud and unruly. Mr Martin had admitted that tissues were thrown about. Mr Barrett told the police that the men in the back of the taxi had been wrestling. Mr Martin admitted to the police that pushing and shoving had occurred in the taxi and he had given Mr Gyimah "a bit of lip". He also admitted that the taxi had "stopped to kick us out". Mr Gyimah had stopped his taxi after he had taken his passengers a considerable distance towards their destination. He stopped in a well-lit area and refused to ask for a fare, he just wanted the men to leave; he asked them to do so in what appears to have been an agitated way (Blue 132). All these matters support an inference that the four men had behaved in an aggressive and unruly way and presented a danger to the safe conduct of the journey, if not to Mr Gyimah, personally. 41 According to Mr Gyimah, the men who got out from the back seat, slammed the door and used some kind of implement to scratch the paint of the door (Black 424). The following exchange occurred in the course of Mr Gyimah's evidence in chief: "Q. How many men? A. There were two men who came to the back of the taxi, and they started throwing themselves onto the boot, making the car move up and down. Q. What part or parts of their bodies were on the boot? A. Their bum, excuse me. Q. Their bums? A. Their bums, yeah. Q. All right, and the back of the cab moved up and down, did it? A. That's right. Q. All right, well now what did those two men do after that? A. When they did that, the – they sat on the – they were still sit on the boot, moving the car boot up and down. But the gentleman who was sitting behind me came into the driver's side and he grabbed my shirt against my neck. Q. Well now how did he manage to reach you? I assume your door was closed? A. My door was closed, yes. Q. Now did he open the door or reach at you through the window, or what was the position?? A. He – he reached through the car with his body and then grab – through the window I mean, and grab my neck. Q. Was the window open? A. Yeah, the window was open." 42 According to Mr Gyimah, the man pressed very hard on his neck, choking him. He said that he used his left elbow "with a bit of force" to hit the man's chest and he let go (Black 425). The man had torn a button from Mr Gyimah's shirt. 43 At this stage, two of the men were still on the boot, moving the car up and down. One of the men on the boot was the person who, initially, had been scratching the side of the car. During this time the man next to him (who was Dr Raman) remained seated. Mr Gyimah had his hand on the gear stick. Dr Raman then grabbed his hand in an attempt to stop him from moving the gear (Black 426). 44 According to Mr Gyimah, Dr Raman was attempting to move his (that is, Mr Gyimah's) hand forward while he, Mr Gyimah, was still holding the gear lever (Black 426). Mr Gyimah asked Dr Raman to stop because what he was doing was very dangerous. Mr Gyimah tried to push the gear stick to the drive position so that he could get away. Dr Raman continued to try and force Mr Gyimah's his wrist so that the gear lever would move into the parking position (Black 428). All this time the engine was running and Mr Gyimah's foot was on the brake. Mr Gyimah pressed the emergency button in the vehicle a few times but could not hear the operator. 45 Mr Gyimah said (Black 428) that, eventually, he "moved the gear stick to drive" and he moved his right foot from the brake to the accelerator. But, he testified: "[T]he gentleman next to me forced my wrist by moving the gear stick back to parking and unfortunately it didn't get parking, it go to reverse gear and the car shot off to hit the gutter." 46 Mr Gyimah said that, once the car hit the gutter and stopped, Dr Raman got out. Mr Gyimah drove the taxi about 5 to 10 metres forward and shortly thereafter moved it again by 30 to 35 metres. He said that two of the men moved towards him and he moved the taxi so that they could not get near him. 47 Mr Gyimah then made a call to the taxi operator on his two-way radio. Mr Gyimah testified that he was worried that his life was in danger and he asked the operator to get him the police. At that time of this first call, he was not aware that anyone was injured. 48 After the first call, Mr Gyimah looked back and saw someone lying on the footpath. He than called the operator a second time and asked him to get the police and an ambulance. I deal under the next heading with the radio calls in greater detail. The operator communicated with the police and told them that Mr Gyimah had been assaulted. 49 Eventually a police car arrived and Mr Gyimah got out of the taxi and went to the police. He told them that he had been under attack and asked them to help him. 50 At the scene, Sergeant Hunt, then Senior Constable Hunt of the Police Crash Investigation Unit, found scratch marks on the side of the taxi and observed that a button had been lost from Mr Gyimah's shirt. The expert evidence 51 I turn now to the first category of appeal grounds, namely, that Nield DCJ erred in preferring the expert opinion of Dr McIntosh to that of Mr Bailey. 52 Dr McIntosh and Mr Bailey considered five possible scenarios that might have led to Mr Mackay suffering the injuries that he sustained. Both experts rejected three of the five possibilities as being highly improbable. It was common ground between them that there were only two reasonably possible scenarios. The parties advanced their respective cases on this basis and his Honour, as well, accepted that only two possible scenarios needed to be considered. 53 The scenario advanced by Dr McIntosh as the most likely was described by Nield DCJ (at [115]) as follows: "[Mr Mackay], when standing on the footpath of Military Road, was struck by the falling 'bus-stop' pole, after it had been struck and knocked over by the taxi when it was suddenly driven backwards in reverse gear." 54 According to Dr McIntosh, it was more likely that Mr Mackay was struck in the front of his head by the pole (thereby causing the laceration to the scalp) and thereafter to the back of his head (the occiput). Thus, on Dr McIntosh's scenario, the pole struck Mr Mackay on the front of his head and he pitched backwards and fell onto the pavement (Black 215) where the occiput was injured. Dr McIntosh accepted that it was possible that the pole struck the back of the head, first, causing Mr Mackay to pitch forward, but he regarded the former scenario as the more probable. 55 Nield DCJ described the scenario that Mr Bailey considered the most likely as follows: "[Mr Mackay], when sitting on the taxi's boot lid, was thrown backwards onto the taxi's roof and then thrown forwards onto the footpath of Military Road as the taxi was suddenly driven backwards in reverse gear." 56 Mr Bailey's scenario assumed that Mr Mackay was sitting on the boot with his legs over the back of the boot. When the taxi accelerated in a reverse direction Mr Mackay's head fell backwards and probably collided with the antennae base attached above the centre of the rear windscreen of the taxi (Black 248-249). According to Mr Bailey, when the taxi hit the kerb with its rear nearside wheel (as it was reversing) Mr Mackay would have been thrown off the boot and pitched forwards onto the pavement thereby striking the top of his forehead (causing serious brain damage and his forehead to be lacerated). 57 At trial, the two main criticisms made by Mr Gyimah of the theory that the falling bus-stop pole struck Mr Mackay on the head were: (a) On the evidence of Sergeant Hunt, no blood or tissue or hair were on the bus-stop pole; on Mr Gyimah's case, having regard to the nature of Mr Mackay's injuries, had the pole struck his head, material of this kind would inevitably have been left on the pole. (b) When Mr Mackay was discovered lying on the ground, injured, the distance between the top of the pole (as it was lying on the pavement) and Mr Mackay's feet was about 3.8 metres, and the distance from the top of the pole to his head about 5 metres; on Mr Gyimah's case, Dr McIntosh's theory did not explain how Mr Mackay ended up in the position that he did. 58 On Mr Gyimah's case, the two matters referred to in the previous paragraph were fundamental flaws in Dr McIntosh's theory. Significantly, however, his Honour, in preferring Dr McIntosh's views, made no mention of them. 59 Sergeant Hunt said that there was no blood or human tissue or hair on the pole, which she examined. She did not recall whether she lifted the pole herself to examine it or whether other officers did so. She was cross-examined as to whether she examined the underside of the pole and she affirmed that she did, although she said that she did not "specifically" remember examining the underside. 60 During the course of closing submissions, his Honour remarked to senior counsel for Mr Mackay: "But even though [Sergeant Hunt] does not remember it, an inference can be drawn from her role, from what she normally did, from her experience, that she looked at the underside of the pole" (Black 585). His Honour, however, in his reasons for judgment, made no mention of Sergeant Hunt's evidence. 61 Mr McIlwaine SC (who together with Mr Davidson appeared for Mr Mackay) and Mr Stone of counsel, who appeared for Dr Raman, sought to justify his Honour's omission by pointing to the fact that Dr McIntosh did not regard the absence of blood or tissue on the pole as significant. 62 Dr McIntosh said the wounds that Mr Mackay received were not wounds: "where there has necessarily been a lot of sort of tearing of the scalp which would deposit skin or hair on the – on an object. There might be some blood possibly but I don't think the absence is particularly informative." (Black 198) It was put to Dr McIntosh that the frontal laceration on Mr Mackay's skull, according to the hospital records, was 8 cm long and that a laceration of that length to the scalp would bleed "very profusely". Dr McIntosh agreed, and pointed out that there was "a lot of blood on the pavement". He said, however: "But whether it would bleed instantaneously onto the pole is – I don't necessarily believe that that – that the – the absence – if we assume that there is no blood, tissue or hair on the pole I do not believe that that changes my opinion about the likely mechanics of that wound." (Black 213) The basis of this view was apparently that Mr Mackay might not have bled the instant his scalp was lacerated. 63 Mr Bailey, however, expressed a different opinion. He said: "I would think it a certainty that there would be remnants of tissue on the pole for the reasons that the pole was caught up as a galvanised pipe typically poles which are made of that material have a roughened surface, the pole which appears in the police photographs appears to be a typical pole in that it has that characteristic. The galvanised finish is like a very fine sandpaper, at the time that the pole under this hypothesis impacted with the left frontal region displacing what was reported as a three cm … 30 mm fragment anterior … in front of the coronal suture and causing six or seven or eight centimetre laceration the first part of that impact involved the unyielding pole compressing the scalp onto the hard [boning] part of the skull and splitting it open to cause the depressed fracture and a depressed fracture opens a sharp edge. … I would anticipate that blood would be liberated, that hair … would adhere to the pole." (Black 247-248) 64 The issues whether there was blood, human tissue and hair on the pole and, if not, the significance of the absence of these materials were critical to whether the scenario advanced by Dr McIntosh should be accepted. His Honour made no findings in this regard and appears not to have applied his mind to these questions in determining that Dr McIntosh's opinion should be accepted in preference to that of Mr Bailey. This was a serious error in fact finding. 65 I turn now to the issue involving the distance between the final position of Mr Mackay and the top of the pole. It was common ground that, if the pole struck Mr Mackay, the impact must have been with the top section of the pole. 66 There was a large pool of blood on the ground where Mr Mackay's head was lying after he was injured. There was a smaller blood smear near that pool, towards the kerb of the pavement (that is, not directly between the end of the pole and the large pool). Thus, there was no blood between the large pool (and the smear) and the pole. Accordingly, for a distance of about five metres between the end of the pole and the two areas where blood was found, there were no blood marks. 67 Dr McIntosh accepted that the pole, in its final position on the pavement, lay more or less aligned with the direction in which the taxi reversed into it. (Black 207-209). 68 Dr McIntosh said that Mr Mackay would not "drop straight in a heap on the spot. He would fall backwards or sideways presumably" (Black 204). Dr McIntosh said that, although it was not within his area of expertise, he did not believe that it was unlikely that Mr Mackay "could have staggered" after being hit by the pole. He raised this possibility because Mr Mackay was "alert" when the ambulance officers attended to him. It was then put to Dr McIntosh that, irrespective of Mr Mackay's state of consciousness: "[t]he sheer force of the impact with the frontal region of his skull would be expected on the probabilities to just knock him down." Dr McIntosh agreed (Black 204). 69 Mr Bailey was of the opinion that Mr Mackay's injuries were not consistent with having been struck by the pole, as there were no traces of blood between the pole (as it lay on the ground), and the position where Mr Mackay was found. 70 Again, it was incumbent on his Honour to subject this particular difference of opinion between the two experts to rational analysis to determine whether one export should be preferred, and to make appropriate findings. His Honour however did not address this issue at all. 71 The primary reason his Honour gave for accepting the opinion of Dr McIntosh and rejecting that of Mr Bailey was his acceptance of the evidence of Mr Barrett, Mr Martin and Dr Raman and his rejection of the evidence of Mr Gyimah. In other words, he resolved the difference between the experts by holding, firstly, that he believed the version of Mr Barrett, Mr Martin and Dr Raman and, secondly, that, as Dr McIntosh's opinion explained how Mr Mackay was injured in accordance with that version, Dr McIntosh's opinion was correct and Mr Bailey's opinion (which was to the effect that Mr Mackay could not have been so injured) was incorrect. That approach was fundamentally erroneous. In effect, it set at nought the relevance of the expert testimony. 72 Plainly, his Honour was entitled to take into account all the evidence, including the evidence of lay witnesses, when determining the issues between the experts: see my reasons (with which Bryson JA and Stein AJA agreed) in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at [68]. But, in this case, the question as to which expert opinion was to be preferred was critical in determining which version of the lay witnesses was to be preferred. 73 The dispute between the two experts was akin to that described by Sheller JA in Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54], namely a dispute that involved "something in the nature of an intellectual exchange with reasons and analysis advanced on either side". As Sheller JA observed, "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". 74 Of course, a judge may discount the views of an expert because of a finding that the assumptions the expert made were erroneous. But it is a different matter in a case such as the present, where the accuracy of the assumptions is dependent, significantly, on which expert opinion is correct. His Honour did not regard the credibility of Dr McIntosh as differing from that of Mr Bailey such as to be a reason for preferring Dr McIntosh. Thus, the difference between the experts should have been resolved by addressing, properly, the merits of their evidence by way of rational analysis. Nothing in the way the case was presented, or in his Honour's reasons themselves, relieved him of "the duties of analysis and the provision of reasons to demonstrate and explain that such analysis occurred" (per Kirby J in SRA v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [88]). 75 Where the reliability of lay witnesses in large measure depends upon how differences between experts are resolved, and the differences between the experts are capable of being resolved rationally by examination and analysis, the judge should not decide the matter on the basis of demeanour, not of the experts themselves, but the lay witnesses. 76 Nield DCJ (at [124]) gave other reasons for rejecting Mr Bailey's conclusion, namely: "(1) [I]f [Mr Mackay] had not been rendered unconscious by his head striking the taxi's roof, he would have put his hands out in front of him to break his fall onto the footpath and (the absence of abrasions or grazes to the palms of his hands shows that this did not happen); and (2) [I]f he had been rendered unconscious by his head striking the taxi's roof, he would have suffered abrasions or grazes to his face when his head struck the footpath." 77 These are secondary or additional reasons to his Honour's primary reason to which I have already referred. 78 Mr Rewell accepted that there was some evidentiary basis for the judge finding that, were Mr Mackay to have been conscious when he fell, he would have put his hands out in front of him. Mr Rewell pointed out, however, that it was not put to any witness that, were Mr Mackay to have been unconscious (through his head striking the taxi's roof), his face would have had abrasions or grazes. On Mr Bailey's version, Mr Mackay would not have had abrasions or grazes to his face as he was pitched forward onto the front part of his head (which sustained a very serious blow) and not his face. 79 In my view, in the absence of an evidentiary basis for such a finding, it was not open to his Honour to hold that, had Mr Mackay been unconscious when he fell onto the pavement, his face would have been abraded or grazed. 80 In my view, the secondary or additional reasons that his Honour gave for preferring Dr McIntosh's opinion are not persuasive. The tissues and tissue box as "objective evidence" refuting Mr Gyimah's version 81 I now turn to the second category of grounds of appeal, namely, the significance his Honour attributed to two particular pieces of evidence that his Honour regarded as "objective". The first piece of evidence was a photograph (photograph 21) of the inside of the taxi, taken by the police at the scene, showing tissues and, according to his Honour, a tissue box, on the front passenger seat. 82 Nield DCJ found that it was impossible for the tissues and tissue box to have been thrown by the rear passengers on to the front passenger seat (in which Dr Raman was sitting) in the position they were shown on the photograph. His Honour found that Mr Gyimah "deliberately and intentionally spread the tissues from the tissue box on the front passenger seat … and onto the floor well after Dr Raman had left the taxi so as to support what he had told the Legion Cabs operator had happened". 83 Photograph 21 (Blue 80) shows what might be an object (that is, some object not formed by the tissues themselves) at the back of the front passenger seat, on the driver's side. His Honour regarded this "object" as a tissue box. Mr Stone, in supporting this conclusion, referred to the following exchange in his cross-examination of Mr Gyimah: "As we look at those photographs numbered 21 at the very right hand edge of the back of the passenger seat is that a tissue box sitting there with the tissues on top of it or is that just a pile of tissues? A. It looks like tissues on top of a tissue box." 84 I do not regard Mr Gyimah's tentative opinion as conclusive on this issue. 85 In my view, it is extremely difficult merely from examining photograph 21 to ascertain with any reliability whether the object in question is a tissue box. The front passenger seat with tissues on it is also shown in photograph 20, and what his Honour regarded as a tissue box in photograph 21, in photograph 20 simply looks like a heap of tissues. 86 Moreover, according to Mr Gyimah, only one tissue box was available in the taxi to his passengers for their use (that is, apart from any that he may have stored in reserve) and, in another photograph, a tissue box is clearly shown on the rear floor of the taxi. 87 The tissues shown on photograph 21 are connected to each other as if they had been pulled as a stream out of the tissue box. The stream of tissues on the front passenger's seat are largely on the extreme right of the seat and cascade over the front edge of the seat to the floor. Some of the tissues are in a position that corresponds with the space that would exist between the legs of a passenger seated on that seat. There are also tissues at the very back of the seat. 88 In my view, the position of the tissues is not inconsistent with the tissues (or even the box, if it is a box) being thrown towards, past and over Dr Raman from the back by passengers wrestling, pushing and shoving and indulging in horseplay as the three men in the back were doing at the time. The tissues could have been thrown over Dr Raman, he could have pushed them away and they could have ended up as seen on the photographs. I would add that, if there had been a struggle between Dr Raman and Mr Gyimah, as Mr Gyimah testified, the movements of the two men as they were wrestling for control of the gear lever could well have disturbed the position of the tissues and any tissue box if there was one. 89 In my view it was quite unsafe for his Honour to draw the inference that he did. The radio calls: the second piece of "objective" evidence 90 The second piece of "objective" evidence that his Honour regarded as significant is the transcripts of the radio calls that were made after the incident occurred. 91 The transcripts of the radio calls loomed large in the judge's reasoning and in the arguments of Mr McIlwaine and Mr Stone. 92 While most of what was said in the calls could be made out, parts were inaudible and the words of other parts were difficult to make out. Mr Mackay and Mr Gyimah each called a witness who had listened to and transcribed the calls, and the transcription made by each was admitted into evidence. There were, however, differences between the transcripts and the judge did not make any findings as to which transcript was correct. Counsel indicated that it would not be helpful for the members of this court to listen to the recordings and it was not suggested that this should be done. The difficulty in discerning precisely what was said made the drawing of inferences from the transcripts problematic. 93 I turn firstly to the first call that occurred, namely, from Mr Gyimah to the taxi operator. According to the transcript tendered by Mr Mackay the following, relevantly, was said: "I picked four young guys from the city and I just dropped them on um Military Road just before Ben Boyd. They are still standing here. If you can please get me the police. They destroy a whole lot of tissue boxes in the car and [indistinct] the car, kick the car [indistinct] later." 94 The taxi operator asked Mr Gyimah whether he was prepared to wait for the police. Mr Gyimah said: "Possibly they will come because they are still standing here. That's why." 95 This transcript is to be compared with the transcript tendered by Mr Gyimah which was as follows: "I picked four young guys from the city and I just dropped them on um Military Road just before Ben Boyd. They are *** me if you can please get me the police. They've destroyed a whole lot of tissue boxes in the car and *** the front of the car kick the car and things like that." 96 The significant difference is that, according to the transcript tendered by Mr Mackay, My Gyimah said "They are still standing here". According to the transcript tendered by Mr Gyimah, these words were not mentioned. Otherwise the relevant aspects of the two transcripts are identical. 97 According to the transcript tendered by Mr Mackay, in the second conversation between Mr Gyimah and the taxi operator, Mr Gyimah said: "Yes ah they were jumping up and down on my taxi and I moved the taxi and one of them falled ahead [indistinct] so if I can get a ambulance please." 98 The operator asked what was happening and Mr Gyimah replied" "I need ambulance please because they they were jumping up and down on the bonnet and [indistinct] to try go. One of the guys have fall down. So if I can get ambulance please." 99 The taxi operator then telephoned the police and said: "Okay he's been assaulted. Apparently he does need an ambulance as well." And: "Apparently there's a whole group of people down there causing a ruckus and they're kicking the taxi." 100 The transcript prepared by the witness called by Mr Gyimah recorded Mr Gyimah telling the operator: "They were jumping up and down on my taxi and I moved the taxi one of them fall *** so that so if I can get an ambulance please." The operator asked what was happening and Mr Gyimah said: "Can I have an ambulance please because they were jumping up and down on the bonnet and I moved to try and go one of the guys have fall down so if I can get ambulance please." 101 Relying on the transcripts, Nield DCJ said: "In my view the defendant's statements to the operator that he had moved his taxi (which is consistent with the evidence of Mr Barrett, Mr Martin and Dr Raman) and his failure to complain to the operator that one of his passengers had interfered with his driving of his taxi further undermines the evidence of the defendant." 102 His Honour made no issue of the fact that in the first radio call Mr Gyimah told the operator that he had dropped the four men on Military Road and "they are still standing here". There was in fact no issue to be made as, on Mr Gyimah's evidence, the first call was made after the taxi had struck the kerb and Dr Raman had got out of the taxi. So, on his evidence, they were, indeed, "all" outside the taxi. 103 Secondly, his Honour made no issue of the fact that Mr Gyimah told the taxi operator in the second call that "they were jumping up and down on the bonnet" (and not on the boot). This appears to have been regarded merely as a mistake on the part of Mr Gyimah, made while he was in a state of fear and panic. It must also be remembered that Mr Gyimah's first language is Ashanti, not English. It can be seen from the evidentiary material that, while Mr Gyimah can speak English reasonably well, he is not always fluent. 104 The main point his Honour made, based on the transcripts of the radio calls, was that Mr Gyimah told the operator that he had moved his taxi. As I understand his Honour's reasoning, he was of the opinion that Mr Gyimah – by saying that he had moved the taxi – was confirming that he had deliberately reversed the taxi. In context, however, it is quite apparent that Mr Gyimah was merely describing his movements in a forward direction away from the pavement (and not any reversing action). As he testified, after he struck the kerb, he moved 5 to 10 metres away and then moved about 30 to 35 metres away. Mr Gyimah's reference to moving the taxi was to moving it forwards, not in reverse. Thus, Mr Gyimah's statement that he had moved his taxi does not undermine his evidence at all and his Honour erred in this regard. 105 The second point his Honour made was that Mr Gyimah failed to complain to the operator that one of his passengers had interfered with the driving of the taxi. One thing is clear, the operator understood from what he had been told by Mr Gyimah that Mr Gyimah was saying that he had been assaulted. The operator reported this to the police in the calls he made to them. In my view no adverse inference should be drawn against Mr Gyimah for failing to mention to the operator that the passenger had interfered with his driving. That was not his pressing fear and, at the time, that was not the main cause of his complaint. He had been assaulted and his taxi (which he owned) had been kicked and scratched and, according to him, two passengers had bounced about on the boot. The assault to him and the potential damage to his taxi were matters that would have been at the forefront of his mind. At that stage, there was nothing to suggest that he knew that the reversing of the taxi had resulted in serious injury to Mr Mackay. 106 Thus, in my view, his Honour erred in finding that Mr Gyimah's failure to complain to the operator that a passenger had interfered with his driving of the taxi undermined his evidence. 107 The errors in regard to the radio calls significantly influenced his Honour in the credibility findings he made. Ms Bodinnar 108 His Honour's treatment of the testimony of Ms Bodinnar is the subject of the third category of the grounds of appeal. 109 Ms Bodinnar gave evidence of two extraordinary coincidences. 110 At the time of the trial, Ms Bodinnar was employed as the operations manager of a small business unconnected with any of the parties. In mid 2003 she was employed by Zurich as a "team leader". Her portfolio did not include catastrophic claims and she worked in a section entirely unconnected with the claim that Mr Mackay had made. 111 In September 2003, Ms Bodinnar was on a train with her father travelling to Homebush to watch a football game involving the Sydney Swans. At some point during the journey a man sat down next to her. She did not know him. In fact he was Dr Raman. They began to converse and Dr Raman asked her what she did for a living. She told him that she worked in insurance and was employed by Zurich. He said that that was odd because he was going to a meeting with Zurich at some stage in the near future. Dr Raman told her that he was training to be a doctor. He then proceeded to say something to Ms Bodinnar about the subject of his intended meeting with Zurich. When asked what he said, Ms Bodinnar replied: "He said he was involved in an incident where he and his mates were in a cab, they were on their way home from a previous Swan's game, I believe. He said that they were all blind drunk, that they ended up having a fight with a taxi driver, that his mate grabbed the gear shift and another mate of his was behind the car and the taxi ran over his friend and hurt him significantly." (Black 560) 112 According to Ms Bodinnar, Dr Raman referred to the taxi driver as a "dickhead". He said that the taxi driver was "screaming at them to get out of the cab". 113 Ms Bodinnar said that she felt "slightly uncomfortable" about the situation, mainly because she did not want to end up having to give evidence in court. For this reason she terminated the discussion about the accident. 114 At that stage Ms Bodinnar did not know of Mr Mackay's claim. During the next week she had a conversation at work with a colleague and "good friend", Ms Deborah Crowe. There were between twenty and twenty-five claims officers at the time at Zurich and it was merely by chance that Ms Bodinnar spoke to Ms Crowe. Ms Bodinnar had no particular reason to believe that Ms Crowe knew anything about Mr Mackay's claim. In fact Ms Crowe was the claims officer in charge of that claim. 115 Ms Crowe was very surprised at what Ms Bodinnar told her and told Ms Bodinnar that the conversation might be relevant to an existing claim. Ms Crowe asked Ms Bodinnar to make a note of the conversation but Ms Bodinnar did not do so. She said that she "never got to it". 116 On 30 September 2003 Ms Crowe made a file note that Ms Bodinnar was "to provide summary of conversation had with one of the boys outside work hrs – apparently, completely different story to what … plus police believe." Plainly, Ms Boddinar had told Ms Crowe that Dr Raman had given her a version of the incident that was "completely different" to what had formed the basis of Mr Mackay's claim. 117 In cross-examination, Ms Bodinnar accepted that she could not recount the conversation with Dr Raman word for word. She acknowledged that, before or after the incident on the train, the case, although not specifically identified by name, might have been the subject of discussion at one of the regular meetings that Zurich staff members had from time to time. Ms Bodinnar also said that she had had conversations with Ms Crowe about the claim. She was asked whether it was possible that "five years later" some of the information that Ms Crowe gave to her "might now be colouring or shading" her recollection about the initial conversation with Dr Raman. She replied in the affirmative. 118 Also in the course of cross-examination, it was put to Ms Bodinnar, as a hypothetical proposition, that Dr Raman might not have said, "my mate grabbed the gear lever" but might have said "It [is] said my mate grabbed the gear lever". Ms Bodinnar agreed that her recollection was not so precise as to exclude this hypothetical possibility. 119 Part of the evidence in the trial was taken on commission in Glasgow, where Mr Mackay was hospitalised. Dr Raman was in Glasgow at the time and gave evidence there. In the course of cross-examining Dr Raman in Glasgow, Mr Rewell put to him the evidence that Ms Bodinnar later gave. Dr Raman remembered sitting next to a young woman with blonde hair (which Ms Bodinnar had) in the train going to the Swans game in September 2003. He said that he remembered chatting to the young woman "because it was coincidence that she had something to do with the case". To all other questions relating to the conversation, Dr Raman said he could not remember what was said. He repeated this several times, saying on more than one occasion "I cannot remember the conversation at all". 120 The most that Mr Rewell could elicit from Dr Raman during this cross-examination was that Dr Raman remembered sitting next to the young woman on the train and that "somehow she was linked with the case". Otherwise, Dr Raman could not remember anything about the conversation. 121 After evidence had been taken in Glasgow, the trial recommenced in Sydney. By then, Dr Raman had become a party to the claim by Zurich. He then was called to testify in support of his defence to the claim. He gave evidence about the conversation with Ms Bodinnar. He said that Ms Bodinnar told him that she worked for Zurich Insurance Company. He told her what job he did and said to her that it was a strange coincidence that he was dealing "with the insurance company". He told her that Zurich was the company concerned. He said that he told her that it was "a legal matter" and "it was about a friend of mine who was hit by a taxi". He then said, "Once we both discovered that she worked for the same company and we might have a conflict of interest there, we both mutually decided that it probably wasn't right for us to be talking about that particular topic any further" (Black 360). Dr Raman said that he had not mentioned anything to Ms Bodinnar about some person interfering with the gear mechanism of the taxi. He denied Ms Bodinnar's version of the conversation. 122 Dr Raman was cross-examined about the fact that he now remembered the conversation but had had no memory of it when testifying in Glasgow. His evidence was to the effect that he had recovered his recollection of the conversation. 123 Nield DCJ accepted that Ms Bodinnar had had a conversation with Dr Raman on the train to the football game. He said that he did not doubt that Ms Bodinnar honestly believed that her evidence as to what Dr Raman told her was accurate to the best of her recollections. In the light of these findings, I draw attention to the order that his Honour made requiring Zurich to pay Dr Raman's costs on an indemnity basis because of "the deliberately false bases upon which [Zurich] drew Dr Raman into [Mr Mackay's claim]". His Honour made no such order against Mr Gyimah. It is therefore difficult to understand what testimony his Honour regarded as "deliberately false". 124 His Honour proceeded to reject the submission advanced on Mr Gyimah's behalf that he should accept Ms Bodinnar's evidence in preference to that of Dr Raman and said that he refused to accept that Dr Raman's evidence was undermined by that of Ms Bodinnar. His Honour gave three reasons for so holding, namely: (a) The statement that Dr Raman and his friends were all "blind drunk" was not factually correct. (b) What Dr Raman told Ms Bodinnar was "inconsistent with what [Mr Gyimah] has said (which is that Mr Martin grabbed him around his neck and that Dr Raman grabbed his left wrist)". (c) The statement that Dr Raman's "mate" grabbed the gear lever was inconsistent with what Mr Gyimah said (which was that Dr Raman grabbed his left wrist). 125 In my opinion, none of these reasons can stand. 126 Nield DCJ said that he did not accept that the men were "blind drunk". He accepted that each of the men was drinking "about the same amount of alcohol as each of the others". He said (at [111]) that, as Mr Mackay had a blood alcohol concentration of 0.90 grams of alcohol in 100 ml of blood, he would have been "moderately affected by alcohol" - as Sergeant Smith assessed Mr Barrett, Mr Martin and Dr Raman to have been. 127 Two points may be made about Ms Bodinnar's evidence that Dr Raman had told her that he and his friends were blind drunk. 128 Firstly, as a matter of ordinary experience, it would not be uncommon for a young man to exaggerate his state of intoxication on a given occasion. It is often a form of boasting. 129 Secondly, Mr Barrett and Mr Martin, in the course of their police interview, had described themselves, respectively, as "pretty inebriated" and "reasonably intoxicated"; they attributed their inability to remember details of what had occurred to the amount of alcohol they had drunk. 130 As regards Mr Gyimah' s evidence that Mr Martin grabbed him around his neck and that Dr Raman grabbed his left wrist, on any view that evidence is not inconsistent with Dr Raman telling Ms Bodinnar the men ended up having a fight with the taxi driver. 131 As regards the grabbing of the gear lever, it is not to the point that Dr Raman told Ms Bodinnar that his mate had grabbed the gear lever (when Mr Gyimah said that Dr Raman had grabbed his wrist). Rather, the point is that Dr Raman, according to Ms Bodinnar, ascribed the cause of the accident to a person grabbing the gear lever. That is precisely the case that Mr Gyimah sought to make and which Dr Raman, Mr Martin and Mr Barrett denied. 132 Ms Bodinnar's testimony was potentially of the greatest possible significance in the trial. There were a number of aspects of the matter that tended to support her version, particularly the essential thrust of it, but it does not follow that his Honour was bound to accept it. The cross-examination of Ms Bodinnar did lay a basis for an argument that her memory of the conversation, to an extent, might be at fault. But this is not how the judge dealt with the matter. The reasons he gave for not accepting her evidence are without substance. His Honour did not embark on a rational analysis of her testimony and did not comment on Dr Raman's volte-face. His finding on this issue is not safe. Credibility of Mr Gyimah 133 The fourth category of the grounds of appeal concerns his Honour's treatment of the credibility of the lay witnesses. I turn firstly to his findings in regard to Mr Gyimah. 134 Nield DCJ (at [104]) listed ten pieces of evidence that Mr Gymah gave. His Honour said, for reasons that he expressed, he did not accept that evidence. 135 The first three pieces of evidence concerned entirely irrelevant and trivial matters that had no bearing on the merits of the case. The other pieces of evidence are, however, capable of being material, at least to an extent. 136 His Honour said (in para (4) of [104]) that he did not accept Mr Gyimah's evidence that Mr Mackay, and the other three men were arguing amongst themselves because, he said, "I accept the evidence of Mr Barrett, Mr Martin and Dr Raman that … there was some pushing, shoving and wrestling between [Mr Mackay, Mr Barrett and Mr Martin]". His Honour's conclusion is a non sequitur. In any event, the evidence of pushing, shoving and wrestling supports Mr Gyimah's statement that the three men were arguing amongst themselves. 137 His Honour said (in para (5) of [104]) that he did not accept Mr Gyimah's evidence that Mr Martin called out "Nigger, go home. Nigger go home" because he did not believe that Mr Mackay, Mr Barrett and Mr Martin "whether or not affected by alcohol, would make such a racist remark in the presence of Dr Raman". His Honour, apparently, had in mind that Dr Raman, ethnically, was Indian. Racial hostility between Indian and African people is by no means an unknown phenomenon. In my view, the inference that his Honour drew because of the presence of Dr Raman was unsafe. 138 Nield DCJ did not (in para (6) of [104]) accept Mr Gyimah's evidence that one of the men used "some kind of key or something like that to scratch the paint of the car" because, "having seen both [Mr Mackay and Mr Barrett] giving evidence, I do not believe that either of them, whether or not affected by alcohol, would have deliberately and intentionally damaged [Mr Gyimah's taxi]". This finding was made despite the fact that, as his Honour acknowledged, Sergeant Hunt recorded seeing scratch marks on the rear left side door of the taxi and some scratch marks on that door can be seen on a photograph. In other words, there were scratches where, on Mr Gyimah's account, there ought to have been scratch marks. It was suggested that it was not proved that the scratch marks were fresh, although Mr Gyimah said that they were. In my view, his Honour's demeanour-based finding, contrary to the objective evidence, is difficult to support. 139 In my reasons (with which Mason P and Tobias JA agreed) in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [16]-[31] I emphasised the need for care in making demeanour findings and the need to give adequate reasons for such findings. I pointed out (at [21]) the need to exercise particular care where a witness is from a different cultural and ethnic background to that with which the judge is familiar. There was such a need in this case. 140 There is nothing about a demeanour-based finding that makes it an exception to the rule that adequate reasons for a decision must be given. At the least, an unsuccessful party should be able to understand why the judge has disbelieved him or her and has believed someone else in preference. It may be open to a judge to hold that, having seen the witness give evidence sober, he or she does not believe that the witness would commit the conduct complained of when "reasonably intoxicated". But such a finding should be made with the greatest care, and should not be made without a rational analysis of the facts and with due regard to the material that is not in dispute or cannot be disputed or other findings or relevant matters that bear on the evidence of the witness in question. 141 Nield DCJ (in para (7) of [104]) did not accept Mr Gyimah's evidence that Mr Mackay and Mr Barrett threw themselves onto the boot lid making the car move up and down "because the boot lid did not reveal any marks suggesting or confirming this had happened". There was no evidence that their actions would have marked the boot lid. Whether marks would have been made depends on precisely what they did. If they were simply sitting on the boot lid and moving up and down (as Mr Gyimah testified) they may not have made any marks. The absence of marks is a slender ground for disbelieving Mr Gyimah's evidence in this respect. In fact, two small marks on part of the boot at the back of the taxi can be seen on a photograph and Sergeant Hunt said that she noticed a "slight" scratch in that area (Black 377). Mr Gyimah complained in his second radio call that "they" were jumping up and down on his taxi (see [97]-[100] above. 142 Nield DCJ (in para (8) of [104]) did not accept Mr Gyimah's evidence that Mr Martin reached through the driver's window and grabbed Mr Gyimah by the neck. He did so because one of the photographs taken by the police showed that the window was closed and the judge considered that it was "very unlikely that [Mr Gyimah] raised the window from the 'down' position to the 'up' position after the incident and before the arrival of police". In addition, his Honour concluded that a weather shield fitted to the window of the taxi driver's door would have made it "difficult, if not impossible, for Mr Martin to have put his upper body into the cabin of the taxi". Thirdly his Honour said, "having seen Mr Martin giving evidence, I do not believe that he, whether or not affected by alcohol, would have deliberately and intentionally assaulted [Mr Gyimah]." 143 Mr Gyimah testified that he always drove with his window down, even in winter. In cross-examination it was pointed out to him that the photograph showed the driver's window up. Mr Gyimah explained that when the police arrived they told him to leave the car and it is common ground that the police impounded it. Mr Gyimah said that the police had been inside the car and must have closed the window. There is no evidence to contradict this testimony. His Honour does not appear to have had any regard to it. 144 As regards the weather shield, the photograph does not indicate that it was a substantial barrier to any person wishing to put his head through the open window. Moreover, the proposition that Mr Martin could not have put his head and upper body into the car because of the weather shield was not put to Mr Gyimah, or anyone else. In the circumstances, it was not open to his Honour to reject Mr Gyimah's evidence on the basis of the existence of the weather shield. 145 Demeanour alone, in the present circumstances, is not a satisfactory ground for rejecting Mr Gyimah's testimony. There are several pieces of objective evidence that had to be weighed in the balance as well. 146 Nield DCJ (in para (9) of [104]) did not accept Mr Gyimah's evidence that he used his left elbow to hit Mr Martin's chest to force Mr Martin to let go of his neck. His Honour said that it would have been impossible for Mr Gyimah to do this and also drew attention to the fact that Mr Gyimah did not mention using his left elbow in his handwritten statement to the police. 147 I accept that it would have been more likely for Mr Gyimah to have used his right elbow, but I do not regard the use of the left elbow as impossible. It is common ground that Mr Gyimah was a relatively small man and he may have been able to manoeuvre his body to use his left elbow. He may have used his right elbow. I do not regard Mr Gyimah's statement that he used his left elbow to ward off Mr Martin as being of any particular significance in the case. For this reason I do not regard his omission to mention the use of his left elbow in the statement he prepared for the police as being of any moment. 148 Finally, Nield DCJ (at para (10) of [104]) refused to accept Mr Gyimah's evidence that Dr Raman interfered with his attempt to move the gear lever because "having seen Dr Raman giving evidence, I do not believe that he would have acted in a way that might have endangered the lives of [Mr Mackay, Mr Barrett, Mr Martin, Mr Gyimah and himself]". Whether, on Mr Gyimah's version, Dr Raman would have known that he was endangering lives is open to question. My comments about demeanour-based findings apply again. Other credibility issues 149 In many respects the evidence given by Mr Barrett, Mr Martin and Dr Raman at the trial was inconsistent with statements each had made at earlier times and with the evidence that each, independently gave. 150 Surprisingly, these inconsistencies related even to whether the taxi collided with them in the incident. 151 In his police interview Mr Barrett said that he was hit in the leg by the taxi (Blue 105). He expanded on this later, saying that he was within two metres of the curb when the taxi hit him (Blue 106 M) and that the rear bumper struck him (Blue 107 P). Later, however, he admitted that he could not actually remember being hit (Blue 114 K). 152 Dr Raman, in his statement to the police at the scene, said that, as he and Mr Barrett sat on the kerb, the taxi reversed, and hit both of them. Why they were sitting is not apparent. There are inconsistencies in the evidence of the three men on this issue. Dr Raman said that, in this incident, he was hit in the head. In his oral evidence, Dr Raman did not recall the taxi hitting Mr Barrett (Black 103 T). He could not recall whether the taxi hit him in the head or whether he suffered an injury to his head in the incident (Black 103-104). Dr Raman also said that he had suffered an injury to his left bicep but said in cross-examination that he was not sure that the taxi collided with his bicep. 153 I have drawn attention to this evidence because it is unlikely that one would not know if one was struck directly by a vehicle in the circumstances that they alleged. His Honour did not refer to this material. 154 There are also inconsistencies in the evidence of these witnesses as to where they were and what they were doing when the taxi began to reverse. 155 His Honour acknowledged that there were differences in the evidence of these witnesses but said that there was a constant central theme in their versions, namely that they and Mr Mackay had left the taxi before it was driven backwards in reverse gear. His Honour discounted the importance of the discrepancies. He said that they were explicable as the witnesses were "moderately affected" by alcohol and because the incident happened unexpectedly, without warning and quickly. 156 I accept that, in principle, it is open to a judge to adopt the approach that his Honour did. That approach, in essence, is a demeanour-based finding. The comments that I have made above apply. 157 Mr Gyimah, by and large, gave consistent evidence as to what occurred. His Honour did not mention this fact. It is a matter that had to be weighed in the balance when the demeanour findings were made. Conclusions 158 In my opinion his Honour's reasons reveal errors in the process of fact finding in the following respects: (a) In preferring Dr McIntosh to Mr Bailey primarily for the reason that he accepted the evidence of Mr Barrett, Mr Martin and Dr Raman and rejected that of Mr Gyimah, without properly subjecting the evidence of Dr McIntosh and Mr Bailey to rational examination and analysis. (b) In failing to make factual findings as to whether there was blood, tissue or hair on the bus-stop pole, and in failing to deal with Mr Gyimah's argument based on the absence of such material. (c) In failing to discuss and analyse the implications of the fact that Mr Mackay was found lying about five metres from the end of the pole and that there were no traces of blood between the end of the pole and where Mr Mackay was lying. (d) In finding that, had Mr Mackay been unconscious when he fell onto the pavement, he would have suffered abrasions or grazes to his face (when this proposition was not put to any witness and where, arguably, he fell on the top of his head and not on his face). (e) In finding that the photographic evidence showed that there was a tissue box on the front passenger seat of the taxi. (f) In finding that it was impossible for the tissues to have been thrown by the rear passengers onto the front seat as shown in photograph 21, and in finding that Mr Gyimah deliberately and intentionally spread the tissues on the front seat. (g) In relying on the transcript of the radio calls without making any finding as to which transcript was accurate. (h) In finding that the transcripts confirmed that Mr Gyimah had deliberately reversed the taxi. (i) In finding that Mr Gyimah's omission to complain that one of his passengers had interfered with the driving of the taxi undermined his evidence. (j) In the reasons his Honour gave for finding that Ms Bodinnar's evidence did not undermine the evidence of Dr Raman. (k) In several of his findings explaining why he did not accept particular evidence of Mr Gyimah. (l) In his treatment, generally, of the credibility of the respective witnesses and his reliance on demeanour findings without paying due regard to the objective circumstances and other relevant matters. 159 In my opinion, for the reasons I have expressed, his Honour's findings involved a failure to use, or a misuse of his advantage as trial judge: see Abalos v Australian Postal Commission [1990] HCA 4; (1990) 171 CLR 167, Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. 160 In my opinion, therefore, Mr Gyimah's appeal should succeed. Mr Rewell sought a retrial and that, in the circumstances, is the appropriate order to be made. 161 Mr Stone submitted that Zurich's appeal against Dr Raman should be dismissed as, taking Zurich's case as its highest, Dr Raman was not the driver of and was not driving the taxi within the meaning of the Motor Accidents Compensation Act. 162 It is plain from authorities such as Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89, Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 and Insurance Australia Ltd v Dickason [2007] ACTCA 13 that a decision as to whether a person was or was not a driver of a vehicle within the meaning of the relevant third party legislation depends on the precise facts found. The exact sequence of events, and the events themselves, that led to Mr Gyimah's taxi reversing are by no means clear. For that reason, it is difficult to determine the nature of Zurich's case "at its highest" and its case articulated in accordance with that test was not revealed to the Court. 163 As a retrial, in any event, is a necessary result of the appeal in the proceedings between Mr Mackay and Mr Gyimah, I think that it would be appropriate to order a retrial in the case between Zurich and Dr Raman. 164 Mr Rewell sought an order in terms of s 140 of the Civil Procedure Act 2005 that the proceedings be remitted to the Supreme Court. Such an order would not readily be made. Nevertheless, the amount involved is large and the issues complex, not least the question whether, if Mr Gyimah's version is to be accepted, Dr Raman was a driver of the taxi. I am persuaded that there is sufficient cause for such an order. Orders proposed 165 I propose that the following orders be made: (a) Mr Gyimah's appeal is upheld. (b) Zurich's appeal is upheld. (c) The orders made by Nield DCJ are set aside. (d) The claim by Mr Mackay against Mr Gyimah and the claim by Zurich against Dr Raman are remitted to the Common Law Division of the Supreme Court. (e) Mr Mackay to pay Mr Gyimah's costs of the appeal and Dr Raman to pay Zurich's costs of the appeal. (f) Mr Mackay and Dr Raman to have certificates under the Suitors' Fund Act 1951. (g) The costs of the trial before Nield DCJ are to be determined by the judge hearing the retrial. 166 McCOLL JA: I agree with Ipp JA. 167 HANDLEY AJA: I agree with Ipp JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.