Andonopoulos v Rainbow - [2015] SASCFC 186

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ANDONOPOULOS v RAINBOW
[2015] SASCFC 186
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
10 December 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS CLEARLY WRONG - GENERALLY
Appeal against dismissal of a claim for damages for personal injury. The first appellant was riding his bicycle to work in the early hours of the morning when he collided with the respondent’s B-double semi-trailer when turning onto South Road from a carpark. The first appellant was following his usual route and wearing safety gear, including lights. The respondent admitted that he had been focussing on the traffic lights ahead of him, his speedometer, and checking for cars to his right immediately before the collision – he was not expecting anything to his left. At trial, the first appellant drew his route on a map. The Judge found that the drawing contradicted his version of events, and made a series of adverse findings concerning the plaintiff’s evidence.
Whether the Judge proceeded under a misapprehension of fact.
Held per Gray J (Sulan and Peek JJ agreeing)(allowing the appeal):
1. The Judge was under a material and significant misapprehension of fact, which led him to doubt the truthfulness and reliability of the plaintiff’s account and coloured his approach to other aspects of the plaintiff’s evidence and case.
2. Retrial ordered.
Fox v Percy (2003) 214 CLR 118; Allen v Chadwick (2014) 120 SASR 350; Terry v Leventeris (2011) 109 SASR 358; Andonopoulos & Anor v Rainbow [2015] SADC 35, considered.

ANDONOPOULOS v RAINBOW
[2015] SASCFC 186
Full Court: Gray, Sulan and Peek JJ
GRAY J.

This is an appeal from a decision of a Judge of the District Court dismissing a claim for damages for personal injury.[1]
[1] Andonopoulos & Anor v Rainbow [2015] SADC 35.
Background
On 14 December 2006 at 5.23 am, the defendant and respondent, Brian Rainbow, was driving a large “B-double” consisting of a prime mover towing two articulated trailers north along South Road at Thebarton.
The first plaintiff and appellant, Fotis Andonopoulos, was riding his bicycle to work. He had on a safety vest which was yellow with black stripes. He had a small pocket made of mesh material on the back of his backpack, and in it was a red flashing tail light, which was visible from behind. The plaintiff had also turned on the tail light fixed to the bicycle, which was the same as the light in the mesh pocket, as well as the front light, which had a constant beam to enable him to see the road surface. The plaintiff was wearing his helmet.
A collision occurred between the defendant’s semi-trailer and the plaintiff’s bicycle, when the bicycle was struck on the right handle bar by the left side of the defendant’s vehicle. This produced a scrape mark on the right handle bar of the plaintiff’s bicycle, and a twisting of the handle bars anticlockwise to the bicycle.
The plaintiff suffered severe injuries when he fell and was run over by one or more of the wheels of the tri-axle combination at the rear of the rear-most trailer of the defendant’s semi-trailer. The injuries to his left leg resulted in a below-knee amputation. He also suffered right leg and pelvis injuries and psychological injuries.
The Trial
The trial proceeded on the issue of liability only.
The plaintiff’s case at trial was that he had followed his routine of riding to work on a bicycle. He followed the same route. This included using the southernmost of two parallel driveways in a car park on the eastern side of Thebarton Oval before entering South Road to travel north. On the day of the collision, he was on the road to be seen by the defendant. The defendant’s rig was only 2 feet from the gutter and did not slow or move to the right before the collision. The defendant negligently failed to see the plaintiff and travelled too close to the plaintiff.
The defendant did not see the plaintiff before the collision. The defendant conceded that, immediately before the collision, he was focussed on the green lights ahead of him at the intersection of South Road and Ashwin Parade, on whether there were cars to his right, and on checking his speedometer – he was not expecting bicycles or anything to emerge from the car park to his left.
The defendant’s case at trial was twofold. He argued that the plaintiff had failed to establish a factual basis for a finding of negligence on the part of the defendant. It was further argued that the more likely scenario on the established facts was that the plaintiff had ridden his bicycle into the side of the defendant’s truck when the front of the truck had passed the point where the plaintiff entered South Road. This was said to be consistent with the defendant’s evidence that he had not seen the plaintiff and that he believed that he would have seen the plaintiff if he had been in front of the truck. Alternatively, it was said that, at best for the plaintiff, he had ridden onto South Road in front of the defendant’s truck at an earlier time, in which event an issue would arise as to whether, conceivably, the defendant could have taken any effective evasive action.
The trial Judge was critical of the plaintiff’s credibility and reliability. This led the Judge to conclude:
I indicate that I am not satisfied, on the basis of the plaintiff’s evidence, that he did emerge from the southern driveway on to South Road as he alleges. The plaintiff’s evidence is not sufficiently reliable, for reasons I will develop later, to enable such a finding to be made. There is no other evidence upon which a finding on that topic can be made, so I make no finding as to which driveway the plaintiff used before entering South Road.
As the Judge could make no finding as to the driveway the plaintiff used to enter South Road, he was left to consider what he described as “three scenarios”, none of which, in his view, led to a conclusion that the plaintiff had discharged the onus of proving a want of care on the part of the defendant which was causative of his injuries and loss.
The Appeal
Counsel for the plaintiff on the appeal contended that the Judge, when assessing the credibility and reliability of the defendant, had acted under a material misunderstanding of fact. It was said that this misunderstanding, and its consequent impact on the Judge’s assessment of the plaintiff, coloured the Judge’s approach to the entirety of the plaintiff’s evidence. It was submitted that it would be possible for this Court to review the transcript and evidence and reach its own conclusion and, upon doing so, should enter judgment for the plaintiff. However, it was acknowledged that the Court, without having seen or heard the plaintiff and the other evidence, was at a material disadvantage. If the Court was not prepared to resolve the matter itself, it was submitted that the appeal should be allowed and the matter remitted for a retrial before a differently constituted Court.
A number of other grounds were advanced. It was submitted that the Judge made other errors of fact. It was argued that the Judge failed to give proper weight to the plaintiff’s evidence of practice or, alternatively, gave wholly inadequate reasons for rejecting that evidence. It was further argued that the Judge was in error in failing to make findings about the manner in which the plaintiff entered onto South Road. Finally, it was contended that the Judge had given undue weight to so-called expert testimony concerning accident reconstruction.
On the appeal, the defendant accepted that the Judge had proceeded under a misunderstanding of fact, but contended that there were many reasons to support the Judge’s conclusion that the plaintiff was an unreliable witness and was not a witness of truth. It was contended that, when regard was had to the possible scenarios postulated by the reconstruction witnesses, the plaintiff’s case was doomed to fail. The defendant urged the Court to dismiss the appeal but contended that, if the Court took the view that the Judge had erred in material respects, the proper order was to allow the appeal and remit the matter for re-hearing.
I consider that the Judge did proceed under a material and significant misunderstanding of fact. In the course of his reasons, the Judge said:
In examination-in-chief, the plaintiff was asked to draw the route he took on an aerial photograph (Exhibit P2). There appear to be two driveways on the photograph, and he drew a line along the northernmost of the two. It is true that the driveways appear to be spaced more widely apart than is depicted on Mr England’s plans. It is significant, however, that when given a choice of only two, the plaintiff chose the northernmost. This was early in his evidence when it might be accepted that he would be nervous. However, I found his explanation confusing and unsatisfactory:
Yes, yes, and then I remember saying that the oval finished there and that’s why I’ve turned it off there because that’s where the oval and that’s where the entry was. So the oval doesn’t go continue anymore that’s why I marked it there. If you look at the pictures they don’t look like they’re very close like they should be in the picture here. They look quite apart more than this room. If you look at the picture that’s what I’m looking at.
(T 103)
This explanation is also perplexing. The ‘entry’ was not where he drew it. The line he drew was along the exit, which was on the edge of the reserve. Wherever it was depicted on the aerial photograph, the entry was south of that point. His answers in re-examination (T 171-2) do not provide any better explanation for the way the plaintiff marked the exhibit.
These observations of the Judge proceed on the basis of the earlier referred to misapprehension of fact. The aerial photograph did not show two driveways. The plaintiff did not draw a line along the northern-most of two driveways. The aerial photograph did not offer the plaintiff a choice of marking one of two driveways. The plaintiff did not choose the northern-most driveway. Given the Judge’s complete misapprehension of the aerial photograph, it is readily understandable that he would find the plaintiff’s explanation confusing and unsatisfactory. It is also understandable that he would find the plaintiff’s explanation “perplexing”. The Judge was wrong to find that the “entry was not where the plaintiff drew it”. The Judge was wrong to find that the plaintiff drew his line of travel as along the exit. Given the Judge’s misapprehension of fact, it is also readily understandable that he misunderstood the re-examination on the topic.
As noted above, counsel for the defendant on the appeal acknowledged all of these misapprehensions of fact. No explanation could be provided for the observations and conclusions of the Judge. This was one of the major reasons supporting the Judge’s finding “I have very strong reservations about the truthfulness of the plaintiff’s evidence on this topic”.
In my view, the Judge’s discretionary findings concerning the plaintiff’s credibility and reliability and his assessment of the plaintiff’s evidence were materially and significantly flawed. In my view, these conclusions of the Judge coloured his approach to the plaintiff’s testimony and the plaintiff’s case. The plaintiff was asked to draw his usual route on the aerial photograph to give the Court a general depiction of the path that he followed. The line drawn in red on the aerial photograph by the plaintiff depicted the path that he followed routinely when riding from home to work. The aerial photograph did not provide enough detail to enable the plaintiff to precisely identify which driveway he used. The Judge in his reasons was unimpressed about the plaintiff’s evidence of his practice. There could be no doubt that his conclusions in this respect were coloured by his misapprehensions of fact.
The plaintiff’s credibility and reliability were important matters at trial. On his case, he entered South Road with the lights on his bicycle and backpack operating and the defendant failed to keep any or a proper lookout when driving a very substantial B-double semi-trailer. In this respect, at its simplest, the plaintiff’s case was straightforward. The semi-trailer occupied most of the lane closest to the left-hand curb and contact occurred between the plaintiff’s right-hand handlebar and the left-hand side of the B-double. The nature of the impact pulled the plaintiff under the wheels of the B-double and led to his severe injuries, including the need for amputation of one of his lower legs. There was no other evidence of damage to the bicycle.
Two accident reconstruction witnesses were called. Both had a level of expertise. However, the following observations of Callinan J in Fox v Percy are apposite:[2]
I return to the facts of this case. Here Mr Tindall was described by counsel for the appellant as an “accident reconstruction expert”. That is an ambitious claim. Three things may be said about the evidence in this case and running down cases generally. Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.
The second matter is the reception, apparently without question, of the whole of the contents of the expert reports in this case. Some of the deficiencies to which reference has already been made would require that, either in law, or in the proper exercise of a discretion, much of them should have been rejected. In the long run the undiscriminating tender of inadmissible, unreliable or valueless evidence, the acquiescence in its tender by counsel on the other side, and its reception into evidence, will prolong and increase the costs of trials. It will increase the margin for judicial error as occurred here, and will also lead to uncertainties and difficulties in courts of appeal. No court is bound to accept evidence of no probative value and evidence of slight probative value will rarely provide a foundation for any confident finding of fact, particularly if strong contrary evidence is available.
The third matter to which reference should be made is that touched upon by Beazley JA in the Court of Appeal, the adversarial stance taken by Mr Tindall. This is very much to be regretted. It also might have been basis enough for the rejection of his evidence. What was said in the tenth edition of Phipson on Evidence and earlier editions before enactment of the Civil Evidence Act 1972 (UK), and notwithstanding the enactment of the Evidence Act 1995 (NSW) remains relevant:
“Value of Expert Evidence. The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of pre-conceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at will.”
[Footnotes omitted.]
[2] Fox v Percy (2003) 214 CLR 118, [149]-[151]; cited with approval by this Court in Allen v Chadwick (2014) 120 SASR 350, [154] and Terry v Leventeris (2011) 109 SASR 358, [21].
The three scenarios postulated by the Judge and supported by defence counsel on the appeal all relied on significant assumptions concerning speed, reaction times, the manner of bicycle riding, as well as other matters. For example, the assumption that the truck was travelling at 55 kilometres per hour relied upon the evidence of the defendant. The defendant admitted that he was focussed on the traffic lights at the intersection which he was approaching. The defendant’s evidence that his speed was 55 kilometres per hour was an estimate. Even though he claimed to have looked at his speedometer, he was also looking at the traffic lights ahead and keeping a look out for other vehicles, particularly to his right. It follows that his estimate of the truck’s speed may be erroneous. A change of the estimation of speed by 10 per cent either way would be significant when considering the scenarios.
The estimation of the speed of the bicycle was speculative. It was based upon average speeds of cyclists.
Estimates of distance must necessarily be imprecise, having regard to it being dark at the time and the inherent danger in relying on any estimates of distance. The distance of the truck from the cyclist at the time that the cyclist entered South Road was significant. The estimates of the distance were fundamental when postulating the scenarios. It is possible to make apparently reasonable adjustments to the assumptions to radically affect the conclusions to be drawn from any of the scenarios.
On the appeal, counsel for the plaintiff advanced a number of other arguable complaints. However, I have reached the view that the earlier referred to misapprehension of itself requires that the appeal be allowed and the matter remitted for a retrial. In these circumstances, I do not consider it appropriate to address the other complaints, as to do so may foreclose arguments that may be fairly advanced on the retrial.
Conclusion
At trial, the Judge was under a material and significant misapprehension of fact. His misapprehension led him to doubt the truthfulness and reliability of the plaintiff’s account of how he entered South Road and how the accident occurred. This misapprehension coloured his approach to other aspects of the plaintiff’s evidence and of the plaintiff’s case. The theoretical scenarios relied on a number of assumptions and provided a wholly unsafe basis on which to reject the plaintiff’s claim. It is to be accepted that the plaintiff carried the onus, but he was entitled to have the Judge consider the discharge of that onus without labouring under a serious misapprehension of fact.
For these reasons, I would allow the appeal and remit the matter for a retrial before a differently constituted Court.
SULAN J. I agree with the reasons of Gray J and the orders he proposes.
PEEK J. I agree with the orders proposed by Gray J and with his reasons.