Boulton v Delpech
[2008] WASCA 245
•2 DECEMBER 2008
BOULTON -v- DELPECH [2008] WASCA 245
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 245 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:135/2007 | 15 SEPTEMBER 2008 | |
| Coram: | WHEELER JA MILLER JA LE MIERE AJA | 1/12/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHANNON JAMES BOULTON JOSEPH JOSE DELPECH |
Catchwords: | Appeal Tort Negligence Motor vehicle accident Liability Whether trial judge erred in failing to provide any or any adequate reasons for preferring the respondent's evidence over the appellant's evidence Whether trial judge erred in failing to provide any or any adequate reasons for resolving conflicts in evidence |
Legislation: | Nil |
Case References: | Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOULTON -v- DELPECH [2008] WASCA 245 CORAM : WHEELER JA
- MILLER JA
LE MIERE AJA
- Appellant
AND
JOSEPH JOSE DELPECH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
Citation : BOULTON v DELPECH [2007] WADC 165
File No : CIV 186 of 2007
(Page 2)
Catchwords:
Appeal - Tort - Negligence - Motor vehicle accident - Liability - Whether trial judge erred in failing to provide any or any adequate reasons for preferring the respondent's evidence over the appellant's evidence - Whether trial judge erred in failing to provide any or any adequate reasons for resolving conflicts in evidence
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr K S Pratt
Respondent : Mr P E Jarman
Solicitors:
Appellant : Trewin Norman & Co
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
(Page 3)
1 WHEELER JA: I agree with Le Miere AJA.
2 MILLER JA: I agree with Le Miere AJA.
3 LE MIERE AJA: The appellant was driving south on Erindale Road intending to turn right into Beach Road. The turning arrow at the intersection was red and there were already two cars positioned in front of the appellant that were stationary at the red light. The car immediately in front of the appellant's car was driven by the respondent. The appellant stopped and was stationary for about 30 seconds. The first car at the intersection took off. A collision occurred between the rear of the respondent's car and the front of the appellant's car. The appellant claims that the respondent reversed and collided into his car and that the collision was caused by the negligent driving of the respondent. The respondent denies that this occurred and claims that the appellant caused the collision by negligently driving into the rear of the respondent's car. The trial judge dismissed the appellant's claim. The appellant now appeals from that decision.
Outline of the evidence
4 The appellant was a 32-year-old spare parts interpreter. He was driving a 1982 Nissan 280ZX, a two door sedan. His girlfriend, Jacquie McCarthy and her friend, Shelby Guilfoyle were passengers in his car. He approached the intersection intending to turn right. There were two vehicles stationary in front of him. He came to a complete stop. The traffic light was red. The red arrow was there for approximately 30 seconds. The arrow turned green. The first car at the intersection took off. There was a slight delay with the second vehicle then he saw the car coming towards him. He looked out of his window to see if he was the one rolling. He was not rolling. He looked again in front of him. Just before the impact occurred he sounded the horn and turned away from the impact. He then noticed that the vehicle that had collided with his had moved forward. He had noticed the reversing lights of the vehicle come on. The appellant stepped out of his vehicle and proceeded to the vehicle that had collided with his. The appellant opened the driver's door of the respondent's car. The respondent was taking off his seat belt. The respondent took off his seat belt, and as he was stepping out of the vehicle he repeatedly said: 'I am very sorry, I have had a bad day, I am really sorry' and shook the appellant's hand. The appellant and the respondent then exchanged details.
(Page 4)
5 Ms McCarthy was a 23-year-old records officer with the Department of Justice. She was sitting in the front passenger seat. Ms McCarthy said that as the appellant's car came up to the lights at the intersection the lights were red. The appellant stopped. She noticed the respondent's vehicle at the lights waiting to turn right. The lights turned green. She saw a car in front. She saw the reverse lights and the car rolling back towards her. She heard a crunch. The car in front had moved back and reversed into the appellant's car. The appellant then got out of the car and told her to write down the details. She opened the door to look out. She saw the appellant open the front driver's door of the car in front. She saw the driver of that car step out with his hands up. He immediately put his hand out to shake the appellant's hand and said: 'I am sorry mate, I have had a really bad night'. The appellant and the driver of the other vehicle then exchanged details. Ms McCarthy said she did not get out of the car at any stage at the scene.
6 Ms Guilfoyle was a 20-year-old cake decorator. She was sitting in the back in the left hand seat. She remembered the car came to a stop at a set of lights. There were two cars in front of them. She gave evidence that she was 'just like looking around [the appellant's] car and stuff'. Ms Guilfoyle said: 'I thought his car was cool so I was just like looking around. Then the car in front of us just rolled backwards, like straight into us'. She did not remember seeing any reversing lights on the vehicle that rolled back. The vehicle then went back forward. The appellant got out of the car to go get the details of the driver. She did not get out of the car. She heard talking but she did not really pay attention to what they were saying.
7 The respondent was a 49-year-old electrical project officer. He was driving his wife's Toyota Corolla. His wife and 17-year-old son were passengers with the respondent's wife sitting in the front and his son in the rear of the car. He drove along Erindale Road towards the intersection with Beach Road. He got into the right turning lane to go into Beach Road. As he approached there was a red arrow to turn right. There was a car already stationary there and he just stopped behind it. He had been waiting stationary for about 30 seconds or so. He felt a bump to the back of the car. When he felt that he drove forward slightly, put on the handbrake and went to get out of the car. As he got out of the car and was heading towards the back to see what damage had been done to the Corolla he was approached by the appellant. The respondent gave evidence that the appellant 'was pretty irate' and that he 'started accusing
(Page 5)
- me of stopping too early'. The respondent denied saying 'I am sorry, I have had a bad day' or anything to that effect. The respondent recalls that he and the appellant shook hands and exchanged details and then went their different ways.
8 The respondent's wife, Mrs Delpech, was a 51-year-old bookkeeper. She said that the respondent was driving south along Erindale Road. There was a red arrow. They stopped at the arrow and were waiting for the lights to change when there was an impact to the back of the car. The driver from the rear vehicle jumped out of the car and he was ranting and raving saying 'Where is your licence? Where is your licence?' At that time she was still in the car. Then she got out of the car to have a look at the damage. Once she got back into the car the respondent was talking to the driver from the rear vehicle. When asked if she could hear the conversation she said, 'Barely. At times I could, yeah'. Her vehicle was stationary for about 30 seconds before the impact. She denied that the respondent reversed the vehicle into the front of the appellant's vehicle.
9 There was no other evidence.
The reasons of the trial judge
10 The trial judge summarised the evidence of each witness, including evidence in cross-examination. The appellant said in cross-examination that his vehicle sustained damage that cost about $2,500 to repair. The trial judge referred to the following evidence of the appellant in cross-examination:
And your evidence is that the [respondent's] vehicle rolling back 3 m caused $2,500 worth of damage to the front of your vehicle?---Yes. He wasn't - it wasn't a slow roll. It was accelerator, go. So it was like a launch. It wasn't a roll, it was like a launch.
A launch?---Yes.
Notwithstanding that it was - what do you say - what is a launch? Can you clarify what you mean by that?---A quick take off.
A quick take-off, back towards you?---Yes (ts 11 - 12).
11 The trial judge referred to Ms McCarthy's description of the movement of the respondent's car in cross-examination as follows:
… You describe the car as rolling back. Is that right?---Yeah, that's right.
So what is - can you clarify that? That is a gentle roll back?---Moving back, rolling back.
(Page 6)
- So it didn't lurch back suddenly towards you, it just rolled back?---No, it didn't lurch no.
Or it didn't launch itself back?---No (ts 30).
12 The trial judge referred to the following evidence of Ms Guilfoyle in cross-examination describing the movement of the respondent's car:
How fast was the car rolling back towards you? How would you describe the speed at which it was coming back?---I have no idea. It kind of just - basically just rolled back.
Not particularly fast?---No.
So you used the word, 'rolled' as if it was sort of a gentle roll back? Is that how you would describe it?---That is what it appeared, like it kind of just seemed to roll back. I think there was a bit of an impact though, when it hit the car, but yeah.
So you wouldn't describe it as launching back toward the vehicle at some speed?---No (ts 24 - 25).
13 The trial judge referred to the evidence-in-chief of the respondent [19]. The trial judge then said that in cross-examination the respondent clarified that between the time of the two drivers meeting at the back of his car and the appellant telling his girlfriend to get back into the appellant's car the respondent said words to the effect of 'you've crashed into me - fine'. The respondent recalled the appellant saying 'no, no, no'. The respondent said that the appellant then said 'you stopped too early'. The trial judge said that the respondent agreed that the appellant had made inappropriate assertions at the scene given that the appellant's car had collided with his stationary car however the respondent did not challenge the appellant because he was worried about his wife and son given the appellant's demeanour and he wanted to leave the scene as soon as possible.
14 The trial judge summarised Mrs Delpech's evidence of the events before the collision, the impact she felt and the events after the impact [20].
15 The final section of her Honour's judgment is entitled 'Findings of fact'. I will set out in full that part of her Honour's reasons for decision:
The onus is on the plaintiff to prove on the balance of probabilities that the defendant reversed into the plaintiff's vehicle as a result of the defendant's negligence.
(Page 7)
- The evidence of the plaintiff and his two passengers differs markedly from the defendant's evidence in relation to the circumstances of the collision, the subsequent contact between the plaintiff and the defendant and the words spoken by the plaintiff and the defendant following the collision. The material issue in this trial is what happened immediately before the collision and although the evidence of what happened after the collision is difficult to reconcile, it does not affect the credibility of the witnesses. The circumstances of what occurred after the collision do not assist me in determining the finding I must reach in relation to causation at the time of the collision.
The plaintiff's evidence is that immediately before the collision he saw the reverse lights and the brake lights of the defendant's vehicle. He was aware that the lights were on because he remembers seeing them go off following the collision. He describes the defendant's speed as being very fast and describes the defendant's car as 'it was accelerator, go. It was like a launch'. He emphatically denies that the defendant's car rolled back slowly.
The plaintiff's passengers however describe the defendant's car as rolling backwards into the plaintiff's car. The plaintiff's passengers reject the proposition that the defendant's car launched itself at speed towards the plaintiff's car. The plaintiff and his passenger, Ms McCarthy, describe the gradient of the road of the scene as being flat.
The plaintiff's evidence is consistent with the defendant's car being placed into reverse and the defendant applying the accelerator in order to launch backwards into the plaintiff's car at speed. The plaintiff's passengers' versions however are consistent with the vehicle rolling backwards on a gradient sloping backwards into the front of the plaintiff's vehicle with no evidence of reversing at speed. A slow rolling motion is described.
The evidence of the defendant and his wife is consistent with a collision with a car from behind their car in that they were unaware of the details of the other car until after they experienced the impact. Both are emphatic that their car did not move, reverse or roll backward in any way and the defendant describes the gradient of the road at the scene as rolling forward. The defendant and Mrs Delpech are mature credible people. I accept their evidence.
The plaintiff did not call any evidence to confirm the gradient at the scene and there is no suggestion that the gradient rolled backwards towards the plaintiff's car on any of the evidence given.
The plaintiff's evidence cannot be reconciled with the evidence of his two passengers. The passengers described a gentle slow rolling motion whereas the plaintiff describes a launch at speed. The discrepancies in the evidence led on behalf of the plaintiff are too great to allow me to accept the plaintiff's evidence in relation to the circumstances that led to the collision. I am not satisfied that the plaintiff has discharged his burden to
(Page 8)
- prove his claim on the balance of probabilities. The plaintiff's claim is dismissed [21] - [28].
Grounds of appeal
16 The appellant appeals on the ground that the trial judge erred in law in failing to provide any or any adequate reasons for:
(a) preferring the respondent and his wife's evidence and particularly that they were 'mature credible people';
(b) resolving the conflict in the evidence between the appellant, Ms McCarthy and Mrs Delpech on the one hand and the respondent on the other;
(c) rejecting the evidence of Ms Guilfoyle and Ms McCarthy;
thereby depriving the appellant of the ability to understand the basis upon which the learned trial judge dismissed his claim and/or to identify whether any errors of law and/or fact had been made in so finding.
17 The trial judge accepted the evidence of the respondent and Mrs Delpech. Her Honour stated that the respondent and Mrs Delpech are 'mature credible people'. It might appear from a superficial reading of her Honour's reasons that her Honour preferred the evidence of the respondent and Mrs Delpech to that of the appellant, Ms Guilfoyle and Ms McCarthy in part for the idiosyncratic reason that older people are inherently more credible than younger people who conduct themselves in accordance with a more youthful culture. However, on a fair reading of her Honour's reasons I find that her Honour meant no more than that her Honour found the respondent and Mrs Delpech to be credible witnesses.
18 The appellant submits that the trial judge failed to provide adequate reasons for resolving the conflict in the evidence between the appellant, Ms McCarthy and Mrs Delpech on the one hand and the respondent on the other. Counsel for the appellant submitted that the evidence of the appellant of the sequence of events immediately following the collision is supported by the evidence of Ms McCarthy and Mrs Delpech and directly contradicts the evidence of the respondent.
19 The trial judge said that the evidence of the appellant, Ms Guilfoyle and Ms McCarthy differs markedly from the respondent's evidence in relation to the circumstances of the collision and the subsequent contact between the appellant and the respondent and the words spoken by them following the collision [22]. Her Honour said in relation to that conflict:
(Page 9)
- The material issue in this trial is what happened immediately before the collision and although the evidence of what happened after the collision is difficult to reconcile, it does not affect the credibility of the witnesses. The circumstances of what occurred after the collision do not assist me in determining the finding I must reach in relation to causation at the time of the collision [22].
20 A judge must consider all of the material relevant to a particular issue on which the judge makes a finding. In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 [28] - [30] Ipp J said:
It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates. I hasten to add that this is not what the trial judge did in this case. Her Honour gave detailed reasons as to why she preferred Mr Arsic's testimony.
Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.
In the influential case of SS Hontestroom v SS Sagaporack (1927) AC 37 at 50, Lord Sumner said that one of the material questions in determining whether the credibility finding in that case was erroneous was: 'Is there any glaring improbability about the story accepted, sufficient in itself to constitute `a governing fact, which in relation to others has created a wrong impression,' or any specific misunderstanding or disregard of a material fact ... that has had the same effect?' It is in this context that the following remarks of Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1835 [130] are particularly relevant:
Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, and the error identified in this case is revealed as an error in the process of fact-finding. In particular, it is
- revealed as a failure to examine all of the material relevant to the particular issue.
21 The evidence of the appellant and the respondent of what occurred after the impact is relevant to their credibility. The appellant said, in effect, that immediately after the collision the respondent admitted that it was his fault. The respondent denied that he had done so. The respondent's evidence was that he said to the appellant that the appellant had 'crashed into me' and the appellant disputed that and said 'you stopped too early'.
22 The appellant's account of what occurred is supported by Ms McCarthy. She said that the respondent apologised to the appellant and said 'I am sorry mate, I have had a really bad night'.
23 Mrs Delpech said that it was not true that the respondent reversed his vehicle into the front of the appellant's vehicle. Mrs Delpech said that after the collision the appellant approached the respondent in an aggressive manner, ranting and raving, and said 'Where is your licence? Where is your licence?' Mrs Delpech's evidence supports that of the respondent that he did not admit that the collision was his fault. On that point Mrs Delpech's evidence is consistent with that of the respondent and inconsistent with that of the appellant and Ms McCarthy.
24 The appellant submits that there were aspects of the evidence of Mrs Delpech as to what happened after the collision that support the evidence of the appellant and Ms McCarthy and is inconsistent with that of the respondent. Counsel for the appellant says that the respondent's evidence was that he got out of the car and then the appellant came up to him ranting and raving. That is said to be inconsistent with the evidence of the appellant and Ms McCarthy that the appellant opened the driver's side door of the respondent's car. Counsel for the appellant says that the following evidence of Mrs Delpech supports that of the appellant and Ms McCarthy and is inconsistent with that of the respondent:
So [the respondent] is still in the driver's seat when you heard the other driver say, 'Where is your licence? Where is your licence?'---Yes.
Then your husband got out. Is that correct?---Yes.
…
So essentially what happened was the accident happened and [the appellant] came up to your husband to the side - where he was sitting. Is that correct?---Yes.
(Page 11)
- Is it true that your husband was getting out of the car about the same time as [the appellant] arrived?---I think so. Around about, yes (ts 59 - 60).
25 Precisely when the respondent got out of the driver's seat in relation to when the appellant first spoke to him is a peripheral matter. Mrs Delpech was not dogmatic about the matter. Her evidence was that she thought that the appellant arrived around about the same time that the respondent was getting out of the car. I attach little significance to it. I attach much more significance to the fact that in relation to what was said between the appellant and the respondent Mrs Delpech's evidence supports that of the respondent and is inconsistent with that of the appellant and Ms McCarthy.
26 The trial judge referred to the evidence of the appellant, Ms McCarthy, the respondent and Mrs Delpech as to the events after the collision. The trial judge said that the evidence of the appellant and his two passengers differs markedly from the respondent's evidence in relation to the circumstances of the collision and the subsequent contact between the appellant and the respondent and words spoken by the appellant and the respondent following the collision [22]. Her Honour said that the evidence of what happened after the collision is difficult to reconcile and 'it does not affect the credibility of the witnesses'. Her Honour did not make any specific findings of what happened after the collision. However, her Honour accepted the evidence of the respondent and Mrs Delpech.
27 It will often be the case that factual issues will be resolved by preferring the evidence of one witness over that of another, particularly where it comes down to a question of 'oath against oath'. In this case the trial judge accepted the evidence of the respondent and Mrs Delpech over that of the appellant.
28 The appellant says that the trial judge failed to provide adequate reasons for rejecting the evidence of Ms Guilfoyle and Ms McCarthy.
29 The trial judge was confronted with two bodies of inconsistent evidence. The evidence of the appellant, Ms Guilfoyle and Ms McCarthy was that the respondent's vehicle moved backwards and collided with the appellant's stationary vehicle. The evidence of the respondent and Mrs Delpech is that the appellant's vehicle drove forward into the respondent's stationary vehicle. The trial judge accepted the evidence of the respondent and Mrs Delpech.
(Page 12)
30 The trial judge found that the appellant did not discharge his burden to prove his claim on the balance of probabilities. That is because the evidence of the appellant, Ms Guilfoyle and Ms McCarthy was not sufficient to displace that of the respondent and Mrs Delpech which her Honour accepted. Her Honour made a number of observations about the evidence of the appellant, Ms McCarthy and Ms Guilfoyle. First, her Honour considered that the appellant's evidence was inconsistent with that of Ms Guilfoyle and Ms McCarthy. The appellant's evidence was, or was consistent with, the respondent's car being placed into reverse and the respondent applying the accelerator in order to launch backwards into the appellant's car at speed. Ms Guilfoyle and Ms McCarthy's evidence was consistent with the vehicle rolling backwards on a gradient sloping backwards into the front of the appellant's vehicle with no evidence of reversing at speed. They described a slow rolling motion. Secondly, there was no evidence that the gradient of the road rolled backwards towards the appellant's car. To the contrary, the evidence of the appellant and Ms McCarthy was that the gradient of the road was flat. The evidence of the respondent and Mrs Delpech was that the gradient of the road rolled forward. That the road was flat, or even rolled forwards, makes it more difficult to accept the evidence of Ms Guilfoyle and Ms McCarthy to the effect that the respondent's car slowly rolled backwards.
31 The trial judge found that there were discrepancies in the evidence led on behalf of the appellant. The evidence of Ms Guilfoyle and Ms McCarthy was inconsistent with that of the appellant. The trial judge was entitled, as she did, to accept the evidence of the respondent and Mrs Delpech and to find that the appellant had failed to discharge the onus of proof.
32 The appeal must be dismissed.
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