Brown v Harding

[2008] NSWCA 51

New South Wales

Court of Appeal

CITATION:	Brown v Harding [2008] NSWCA 51
HEARING DATE(S):	26 October 2007
JUDGMENT DATE:	31 March 2008
JUDGMENT OF:	Hodgson JA; Hidden J; Hislop J
DECISION:	(1) Appeal allowed. (2) Set aside the verdict and judgment for the respondent and any orders as to costs. (3) Remit the proceedings to the District Court for rehearing. (4) The costs of the hearing in the District Court before Balla DCJ to be in the discretion of the judge rehearing the proceedings. (5) The respondent to pay the appellant's costs of the appeal.
CATCHWORDS:	TORT - motor vehicle accident - personal injury - liability - acceptance of evidence of witness.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Kickett v SGIC (1997) 26 MVR 321 Cook v Cook (1986) 162 CLR 376 Gala v Preston (1991) 172 CLR 242
PARTIES:	Irshad Ali Brown by his tutor Ian Brown (Appellant) Scott Harding (Respondent)
FILE NUMBER(S):	CA 40350/2006
COUNSEL:	B Dooley SC/P Cummings (Appellant) J N Gleeson QC/B Smith (Respondent)
SOLICITORS:	Marshall & Partners (Appellant) Moray & Agnew (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3216/2005
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	19 May 2006

CA 40350/2006
DC 3216/2005

HODGSON JA
HIDDEN J
HISLOP J

Monday 31 March 2008

IRSHAD ALI BROWN by his tutor IAN BROWN

v

SCOTT HARDING

Judgment

1 THE COURT:

Introduction

The appellant brought proceedings in the District Court to recover damages for injuries sustained at about 12.10 am on Saturday 22 December 2001 when a stolen motor vehicle in which he was travelling as a passenger left the road and collided with a power pole. The proceedings were brought against the registered owner of the vehicle relying upon the conclusive presumption of agency created by s 112(1) of the Motor Accidents Compensation Act 1999.

2 The driver of the vehicle, Bruce Hunt, suffered relatively minor injuries in the collision. The appellant sustained severe head and other injuries and has no recollection of the collision or events preceding it. The other passenger in the vehicle sustained fatal injuries. Mr Hunt was born on 12 March 1985, the appellant on 24 February 1985.

3 Mr Hunt was charged with a number of criminal offences arising out of the theft of the vehicle and his driving of it. This resulted in him being sentenced to two years imprisonment with a non parole period of one year. He had served his sentence by the time the appellant’s proceedings came on for hearing before Balla DCJ.

4 Mr Hunt’s evidence in these proceedings was recounted in the judgment of Judge Balla as follows:

“…he had met some of his friends near Finian’s Tavern. At around 6 p.m. they started drinking rum. They met up with the plaintiff at about 10 o’clock and continued drinking for about an hour.
Five of them, including the plaintiff and Mr Hunt, started to walk around. After 11.00 pm they were walking through a car park and saw the defendant’s car. The plaintiff said ‘We should take this car for a joy ride.’
The plaintiff tried to break the back small quarter window on the driver’s side by punching it while holding a piece of wood in his hand and 20 cent pieces between his fingers. It did not break. The plaintiff then broke it by throwing a coin at it. He put a sock on his hand to clean the glass out. The plaintiff then put his arm through the window and opened the back passenger door. All the doors were opened and the hood was popped. Mr Hunt was given a dipstick and told to put it in the ignition and jig it around. He did, and the car started.
The plaintiff drove and Mr Hunt sat in the front passenger seat. At Flynn’s Beach they dropped off the other three passengers so that only the plaintiff and Mr Hunt stayed in the car. Mr Hunt took over driving. At the Tacking Point roundabout they picked up the hitchhiker.
On the way to Lake Cattai [sic], Mr Hunt lost control of the car. After the accident he left the car, he said, to go and get help.”

There were no other eye witness accounts before the court as to the theft of the vehicle.

5 The respondent relied upon this evidence to establish a defence of joint illegal enterprise based upon the appellant acting in concert with Mr Hunt in the theft of the vehicle or, alternatively, riding in the vehicle knowing it to have been stolen.

6 Mr Hunt had told a number of lies in respect of the relevant events. Her Honour recognised this but nevertheless concluded the appellant did participate in the theft of the vehicle as described by Mr Hunt. Accordingly, she found a verdict for the respondent.

7 In these circumstances her Honour did not proceed to determine other defences raised in the notice of grounds of defence or the issue of contributory negligence. Damages had been agreed between the parties (subject to the calculation of management fees) in the event the appellant succeeded in his claim.

8 Although there were numerous grounds of appeal, the essential issue on appeal was whether her Honour erred in accepting Mr Hunt’s evidence that the appellant participated in the theft of the vehicle.

9 Before turning to the appellant’s submissions on appeal, it is first necessary to record how her Honour dealt with the submissions on behalf of the appellant as to Mr Hunt’s credibility.

The judgment

10 Mr Hunt had taken part in a record of interview on 23 December 2001. On cross examination he agreed that in that interview he had lied in respect of a large number of questions. Her Honour accepted that he lied in the record of interview because he was concerned that he would be found responsible. For that reason she was not persuaded that these untruths directly impacted on Mr Hunt’s credit.

11 Mr Hunt gave evidence that after the collision he left the vehicle to get help. Her Honour accepted he was not telling the truth in this regard and inferred he was running away to escape responsibility for the accident. She was not persuaded this meant he was not telling the truth about the appellant’s participation in the stealing of the vehicle.

12 Mr Hunt gave evidence that when he entered the vehicle he was “pretty drunk”, that he was slurring his speech but was walking all right. In September 2002 he told an alcohol counsellor he had been very drunk at the time and the Baxter Juvenile Justice Centre records contain a history that Mr Hunt in January 2003 had said that he had been drinking heavily at the time. There was an entry in the hospital records “ETOH ” though a test at the hospital at 2.45 am showed nil alcohol in his blood. Her Honour accepted that this finding suggested his description of very heavy drinking that evening was unlikely to be correct. She accepted “that it is likely that Mr Hunt is using drunkenness in an attempt to reduce his personal responsibility for the injuries to the [appellant] and the death of [the other passenger]” and concluded: “For this reason I am not persuaded that this untruth directly impacts on Mr Hunt’s credit.”

13 Mr Hunt said in evidence that he had been unable to recollect the names of the other three witnesses present at the time the vehicle was stolen. Her Honour described Mr Hunt’s inability to recollect their names as inexplicable but seemingly accepted Mr Hunt was seeking to protect those persons against prosecution but could not deny the presence of the appellant at the scene of the accident.

14 Mr Hunt said he only agreed to steal the vehicle as a result of peer pressure and because he was drunk. Her Honour accepted that his criminal record disclosed he had engaged in similar and other criminal activity in the recent past.

15 Counsel for the appellant suggested that the appellant’s involvement in taking a vehicle would have been out of character. Her Honour accepted there was no evidence the appellant had engaged in this or similar activities in the past but stated: “However it is clear that he had displayed psychological and behavioural issues which caused antisocial behaviour.”

16 Counsel for the appellant relied upon an inconsistency in the evidence as to the manner of entry into the vehicle. Her Honour was not persuaded that the evidence was necessarily inconsistent nor was she persuaded that any consequence of significance arose from this part of the evidence, even if there was an inconsistency.

17 Her Honour accepted that Mr Hunt’s evidence of using a dipstick to enter the vehicle could not be reconciled with the fact a key was found in the ignition after the accident but concluded: “That does not cause me to reject the whole of his evidence”.

18 Her Honour found that the vehicle was stolen on Friday 21 December 2001 around 11.30 pm. Mr Nath, a friend of the appellant’s family, gave evidence that he recalled seeing the appellant at the Coles carpark prior to 11.30 pm. The Coles carpark was adjacent to the Finian’s Tavern carpark. Mr Nath said he and his brother drove from the Coles carpark to pick up their mother who finished work at about 11.30 pm and returned to the Coles carpark a short time later. He said the appellant came over and gave Mr Nath’s mother a hug and a kiss. He heard a male call out to the appellant from a car parked just behind a bus stop. He saw the appellant walk toward the car, lean in through the open passenger door and talk to the driver. He gave evidence the last he saw was the appellant getting into the front passenger seat. He could not recall the colour or make of the car. He did not describe the person in the driver’s seat. He only saw one person in the car.

19 It was submitted the evidence of Mr Nath supported the submission that the appellant got into the vehicle after it had been stolen. Her Honour did not accept this submission. That submission was dependent upon her Honour finding that the plaintiff got into the vehicle just after it was stolen at around 11.30 pm. She found Mr Nath did not have any separate recollection of the time. He had reconstructed it from the fact that he usually picked up his mother from work at 11.30 pm on Saturdays. Mr Nath’s evidence in re-examination, when he was told the relevant day was Friday not Saturday, was that his mother would have worked late on the Friday before Christmas. In her Honour’s opinion this did not alter the fact that he had no independent recollection of the time at which he had seen the events he described. Neither his mother nor his brother were called to give evidence in circumstances where her Honour concluded their evidence was likely to have assisted in establishing the time and to an extent the date on which those events occurred. There was no explanation for their failure to give evidence. Her Honour inferred that their evidence would not have assisted the appellant’s case.

20 Her Honour found:

“Mr Hunt attended High School from Year 7 to Year 9 with the plaintiff. They were very good friends. Mr Hunt said that they spent a lot of time together and did everything together. They would ‘stick up for each other’ and were ‘pretty much like brothers’ . The plaintiff agreed that they were pretty good mates and would look out for each other.
At the end of March 2001 the plaintiff left to go to a boarding school some distance from Port Macquarie. The two of them stayed in touch in the months leading up to the accident. They met once a month, spent time together during school holidays and spoke by mobile phone.
Mr Hunt lived at the plaintiff’s family home for one or two months in the first half of the year. The plaintiff was away at boarding school at the time. The plaintiff’s parents asked Mr Hunt to leave because of his behaviour.”

21 Her Honour concluded

“I accept that Mr Hunt ultimately accepted responsibility by pleading guilty. There is no obvious reason, at this stage, for his lying about the involvement of the plaintiff.”

Discussion

22 Senior counsel for the appellant did not, in his oral submissions, press an argument that the appellant’s character was such that he might not have participated in the theft of the vehicle. He also accepted that her Honour’s findings as to the alleged inconsistency of evidence as to the manner of entry of the vehicle were available to her.

23 He submitted that the cumulative effect of all of the lies told by Mr Hunt was that he could not be believed about anything. As he put it,

“everything about him [Mr Hunt] is a lie except the one thing we can’t test because, and why can’t we test it, for the other lie. The three friends who…he won’t name.”

In these circumstances, he submitted, her Honour was required to carefully assess the remainder of his evidence in the light of those lies but had not done so.

24 The applicable principles are as follows:

(a) In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [35] Heydon JA said, referring to the decision of Handley JA in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 at 118:

“Handley JA did not say that where a party-witness has lied, the balance of the testimony can never be accepted without corroboration. All he said was that the balance of the testimony in that case called for careful assessment. What the trial judge here provided was careful assessment…though the trial judge gave no reason for accepting the evidence of the plaintiff…he was entitled to accept her evidence on the basis of the overall character of her testimony, part of which was to be disbelieved for particular reasons, part of which was to be believed because it was corroborated, and part of which was, though not corroborated, not affected by any particular reason not to accept it…The test for the trier of fact is to separate the truthful parts from the rest. While it may be that other triers of fact would have arrived at conclusions different from those of the trial judge in this case, the fact is that the conclusions that he arrived at were not implausible. The weaknesses of parts of the plaintiff's evidence here, while troubling, were not so great as to call for a rejection of all the uncorroborated parts of it .”

(b) In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ said:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence' or which was `glaringly improbable’.”

(c) In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ observed at [28] that:

“In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.”

25 Whilst there were no express demeanour findings, the acceptance of Mr Hunt’s evidence was dependent upon her Honour’s assessment of his credit and necessarily was influenced by her impression of Mr Hunt as a witness.

26 In our opinion, her Honour carefully assessed the evidence. She dealt specifically with the matters pressed by senior counsel for the appellant. Her conclusion that the appellant participated in the theft of the vehicle was not implausible and there were no incontrovertible facts or uncontested testimony which demonstrated that her Honour’s conclusions were erroneous. It was not glaringly improbable that the appellant was involved in the theft of the motor vehicle. In our opinion, subject to what we say below, her Honour’s preference for the evidence of Mr Hunt over that of Mr Nath was open to her, as was the conclusion that the appellant did participate in the theft of the vehicle.

27 However, it appears that an essential part of her Honour’s reasoning process was, as she stated,:

“I accept that Mr Hunt ultimately accepted responsibility by pleading guilty. There is no obvious reason, at this stage, for his lying about the involvement of the [appellant].”

28 At one level this conclusion was correct. Mr Hunt had accepted legal responsibility for the offences. He had been charged, pleaded guilty, was convicted and sentenced and had completed his term of imprisonment. He had no reason to lie in order to protect himself from further liability under the criminal law. He said in cross examination that he “had nothing to hide no more” and “no need to lie about anything”. Her Honour was entitled to take these matters into account as part of her reasoning process in determining whether the appellant had participated in the theft of the vehicle.

29 It was, however, submitted for the appellant that all of Mr Hunt’s lies had been aimed at reducing his own moral responsibility for the injuries and death resulting from his conduct and that his evidence that the appellant was involved in the theft of the vehicle was a further example of him lying to reduce his own moral culpability. This provided a reason for him to lie at this stage about the involvement of the appellant in the theft of the vehicle. It was open to her Honour to reject this submission.

30 However, her Honour expressly accepted it was likely that Mr Hunt was using his assertions of drunkenness in an attempt to reduce his personal responsibility for the injuries to the appellant and the death of the other passenger, and she gave this as her reason for not being persuaded that this untruth about drunkenness impacted directly on his credit. Such an untruth must impact directly on a witness’s general credit, so her Honour can only be understood as saying it did not impact on his credit in relation to the appellant’s involvement. But her Honour’s finding that Mr Hunt told an untruth about his drunkenness in an attempt to reduce his personal responsibility was, as the appellant submitted, a finding which disclosed a reason for Mr Hunt to lie even at this stage and, relevantly, to lie as to the appellant’s involvement in the theft of the vehicle. Additionally, her Honour apparently rejected other assertions by Mr Hunt at the trial which must reasonably have been considered untruths told for the same purpose, namely that he left the vehicle to get help and that he agreed to steal the vehicle as a result of peer pressure. Mr Hunt’s account of what the appellant did was the primary component of the “peer pressure” which Mr Hunt alleged (and the trial judge apparently did not accept) caused him to steal the vehicle.

31 In our opinion, her Honour’s conclusion that it was likely Mr Hunt had lied to her in order to reduce his personal responsibility was in conflict with her finding that Mr Hunt had no obvious reason for lying about the involvement of the appellant. The conclusion is indicative of an erroneous reasoning process, the consequence of which, subject to the matters discussed hereunder, is that the appeal must be upheld.

An alternative basis for the verdict

32 Although the trial was largely concerned with evidence and submissions as to whether the appellant participated in the theft of the vehicle, her Honour, in her judgment, noted the following concession:

“Counsel for the plaintiff conceded that if there was a finding that the defendant had shown that the plaintiff knowingly participated in travelling in a stolen vehicle the defence of joint illegal enterprise was established and the plaintiff’s case must fail.”

33 Some concession to this general effect was made by senior counsel for the plaintiff and formed part of the submissions before Balla DCJ. However the submissions and concession were not recorded in the transcript. There was a difference in the recollection of senior counsel for each party as to the precise terms of the concession.

34 Assuming, but not deciding, that the concession was correctly noted by her Honour, this may provide an alternative basis to uphold the verdict for the respondent provided the evidence established the appellant knowingly participated in travelling in the stolen vehicle.

35 The respondent submitted, that given the nature of the relationship between the appellant and Mr Hunt prior to the accident, and given the fact the appellant was older than Mr Hunt and would have known Mr Hunt’s age and that Mr Hunt could not therefore be licensed, and knew that Mr Hunt did not own a motor vehicle, and knew that Mr Hunt was living away from his family home, on the balance of probabilities the appellant must be taken to have known that the vehicle was not Mr Hunt’s and was stolen.

36 The appellant submitted the necessary inference

“wouldn’t be drawn because this evidence whilst he [Mr Hunt] was unlicensed that he was nearly at a time for getting his licence, that it was the intention to get one, then was an intention the father would get him a motor vehicle. The breaking in is not obvious to somebody because it’s a quarter window at the back so that he could have quite easily have got into that vehicle not knowing it was stolen.”

37 In our opinion, if the appellant had entered the vehicle after it was stolen he may not have observed the broken rear quarter window. It is probable he would have asked Mr Hunt where he got the vehicle. Mr Hunt may have told him the truth, that it was stolen, or may have told him a false story eg his father had bought it for him in anticipation of him obtaining his licence, a relative had given him the car, he had borrowed it from another etc. In our opinion, in the absence of observing Mr Hunt give evidence, it would be no more than speculation to find that if the appellant had entered the car after it was stolen he would have become aware then or during the course of the journey that the vehicle had been stolen. Accordingly, we would not draw the inference that the appellant knowingly participated in travelling in the stolen vehicle.

38 This conclusion makes it unnecessary for the Court to determine whether a concession in the terms noted by her Honour would have been correctly made.

39 There is authority - Kickett v SGIC (1997) 26 MVR 321 - which, prima facie, would justify such a concession. However, that decision is distinguishable as there the purpose of the trip was to steal another vehicle.

40 A passenger in a motor vehicle is in a position of extreme vulnerability to death or really serious injury from the actions of a driver. The ordinary duty of care owed by a driver to a passenger is displaced only in special and exceptional circumstances, and the onus of establishing that it is displaced lies on the party making that assertion: Cook v Cook (1986) 162 CLR 376 at 387, Gala v Preston (1991) 172 CLR 242 at 254. In considering whether the duty of care is displaced, the focus is not so much on the passenger’s actual perception of risks but on whether the relationship between the passenger and the driver is such as to exclude the duty of care ordinarily owed by the driver to the passenger. In our opinion, it may be arguable that if all that appears is that a passenger enters a vehicle at the invitation of the driver in circumstances where it was apparent to the driver that the passenger must have realised the car was stolen, it should not be inferred that the passenger thereby manifested acceptance that the driver would not exercise any ascertainable level of skill or care or would act in disregard of the passenger’s safety as by becoming involved in a police chase. It may be that it would not be sufficient that the passenger knew the driver was not licensed to drive and the driver knew of this, as that would not itself displace the duty of care; and that it would need at least an additional element such as appeared in Kickett that both of them were involved in a joint illegal enterprise.

41 As is apparent from the above comments, we regard the issue as arguable. However, as the matter was not fully argued before us, we refrain from expressing any concluded opinion on this question.

Disposition

42 The respondent submitted that there should be a retrial in the event the appeal was successful. The appellant submitted that in the event he was successful on the appeal there should be a verdict for him or, alternatively, this Court should determine liability and any other outstanding issues.

43 In our opinion, the credit and demeanour issues in this case are such that, error having been found, a retrial is necessary. The need for a retrial is compounded by the circumstances in which the evidence of Mr Nath was given, which had the effect, inter alia, of preventing the respondent obtaining and examining employment records relating to Mr Nath’s mother, and by reason of the fact that there are defences, including contributory negligence, which have not been determined.

Orders

44 The orders of the Court are:

1. Appeal allowed.

2. Set aside the verdict and judgment for the respondent and any orders as to costs.

3. Remit the proceedings to the District Court for rehearing.

4. The costs of the hearing in the District Court before Balla DCJ to be in the discretion of the judge rehearing the proceedings.

5. The respondent to pay the appellant’s costs of the appeal.

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