Carian v Elton - [2006] NSWCA 168

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Carian and Others v Elton [2006] NSWCA 168

HEARING DATE(S): 5 April 2006

JUDGMENT DATE:
29 June 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Tobias JA at 124

DECISION: Appeals in 40265/05, 40267/05 and 40268/05 are dismissed with costs.

CATCHWORDS: NEGLIGENCE – motorcycle accident – dispute as to driver – permissible inferences as to likely driver – presumption of continuance – numerical probability distinguished from balance of probabilities standard. - EVIDENCE – rejection of expert evidence based on factual assumptions made. - EVIDENCE – evaluation of contested evidence of admissions – “rider” with respect to motorcycle carrying two persons – “riding” with respect to motorcycle carrying two persons. - Luxton v Vines (1952) 85 CLR 352 distinguished. - Carian v Elton (2000) 31 MVR 421, considered. - Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, considered.

CASES CITED: Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Carian v Elton (2000) 31 MVR 421
Fox v Percy (2003) 214 CLR 118
Luxton v Vines (1952) 85 CLR 352
Maher-Smith v Gaw [1969] VR 371
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nesterczuk v Mortimore (1965) 115 CLR 140
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Van Eeden v Henry (2005) 42 MVR 375

PARTIES: Clinton James CARIAN (Appellant CA 40265/05)
Debbie SALISBURY (Appellant CA 40267/05)
Christopher CARIAN (Appellant CA 40268/05)
Ivan JONES (Appellant CA 40423/05)
Scott Peter ELTON (Respondent in all above matters)

FILE NUMBER(S): CA 40265/05; 40267/05; 40268/05; 40423/05

COUNSEL: CA 40265/05; CA 40267/05; CA 40268/05:
D T KENNEDY, SC/ A PORTHOUSE (Appellants)
D J RUSSELL, SC/ O ASSABGY (Respondent)
CA 40423/05:
M A CLEARY (Appellant)
P S JONES (Respondent)

SOLICITORS: CA 40265/05; CA 40267/05; CA 40268/05:
Herbert Weller (Appellants)
Ray Wehbe & Co (Respondent)
CA 40423/05:
Turner Whelan (Appellant)
Matthews Dooley & Gibson (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC8229/97; DC6588/98; DC6589/98; DC8368/97

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 10 December 2004

CA 40265/05 (DC 8229/97)
CA 40267/05 (DC 6588/98)
CA 40268/05 (DC 6589/98)
CA 40423/05 (DC 8368/97)

BEAZLEY JA
SANTOW JA
TOBIAS JA
29 JUNE 2006

Clinton James CARIAN; Debbie SALISBURY; Christopher CARIAN; Ivan JONES v Scott Peter ELTON

Judgment

1 BEAZLEY JA: I agree with the judgment of Santow JA and with his Honour's orders and with the further remarks of Tobias JA in his judgment. As their Honours have canvassed the issues in detail there is nothing further for me to add.

2 SANTOW JA:

OVERVIEW

3 At the time of the accident on 28 October 1994 the principal appellant was aged 15 and the respondent 16. They had taken Mr Jones’ trail bike from his country property through a paddock and onto the road, at night, after drinking with other boys. They crashed into a tree whilst travelling on the open road, and suffered serious injuries, in the case of Carian very severe ones. It is not disputed that the principal appellant was the driver initially, nor that the bike was so ridden in a paddock and then taken on to the open road. The principal appellant however contends that Elton took over as the driver just before the accident, relying on an alleged admission to a passer-by who was first on the scene of the accident. The trial judge concluded otherwise, dealing with the alleged admission in some detail.

4 The respondent was thus successful in both trials below in persuading the trial judge that it was the principal appellant who had been the driver of the trail bike throughout and that his negligence caused the injury. It is that conclusion, reached again by Garling DCJ in the second trial, which the principal appellant seeks to challenge. This is on several bases being principally:

(b) failure to give adequate reasons, and

(c) insufficiency of evidence to draw the relevant inferences and make the findings of fact that the trial judge made.

The principal appellant accepts that if successful the result must be a re-trial. The other appellants, Carian’s mother and brother, who claim against Elton for nervous shock, likewise accept that if successful there must be a new trial.

5 The owner of the motor cycle as claimant seeks to appeal against the determination below that, though not involved in the subject accident, he was liable as registered owner of the trail bike. This is on one of two alternative bases. The first is that the identity of the driver of the trail bike could not be determined even on the balance of probabilities as between principal appellant and respondent. Hence no decision could be made in favour of either Carian or Elton so Elton as plaintiff must fail. The alternative basis is that, adopting the submissions of the principal appellant, it was Elton, not Carian, who should have been determined to be the driver of the trail bike.

6 The respondent maintains the position that the principal appellant was the driver.

SALIENT FACTS

7 What follows is not in dispute, save where indicated.

8 Carian and Elton were riding a motorcycle when it crashed into a tree. Each youth was injured, Carian very seriously. Carian sued Elton. So too did Carian's mother (Debbie Salisbury) and brother Christopher (Christopher Carian), both claiming damages for nervous shock. Elton in turn sued Mr Ivan Jones (“Jones”), the registered owner of the motorcycle. The four actions were tried together in the District Court, the trial being confined to liability.

9 Prior to the present proceedings, these matters had already been heard in the District Court by Patten DCJ, and were appealed to the Court of Appeal who remitted the proceedings to the District Court for re-hearing. The re-hearing proceeded but the judge (Urquhart DCJ) later had to disqualify himself. The appeal is thus from the third District Court hearing, this time before Garling DCJ.

10 On 28 October 1994, Bobby Jones (aged 15, son of Ivan Jones), Carian (aged 15) and Elton (aged 16) gathered together at Bobby Jones’ parents’ home, where they consumed alcohol.

11 At about 10pm, the boys went into a garage where Ivan Jones had a trail bike, a 250cc Honda. A decision was made to go for a ride on the bike. Bobby Jones was not in favour of it.

12 Carian was driving the bike and Elton was the passenger at the commencement. They rode around the paddock and then Jones went inside. While he was inside, the bike was driven by Carian out of the paddock and onto Grose Vale Road, North Richmond.

13 There was evidence that at some point the boys turned into a side road before returning to Gross Vale Road.

14 At about 11.15pm, whilst travelling on Grose Vale Road, the bike hit a tree and both boys were injured and taken to hospital by ambulance.

15 Elton gave evidence that his last recollection before the ambulance was of seeing reflectors and a portion of brand new road about 200m before the accident site. (This evidence is disputed.)

16 The first person on the scene after the accident was Mr Cooper, who lived in a nearby house.

17 When Cooper arrived on the scene, Carian was unconscious in a foetal position about one metre away from the tree. Elton was lying 10-15 metres up the road, in the middle of the road. His leg was badly broken and bent up beneath his body. He was screaming with pain. The bike was lying on its side in the vicinity of Elton, it was closer to Elton than to Carian, towards the side of the road.

18 Mr Cooper moved Elton off the road as he was in a position of danger from approaching vehicles. He then had a conversation with Elton, the content of which was disputed. Mr Cooper’s version, strongly disputed by Elton, was that Elton admitted that he was in control of the bike in that last 200 metres. The precise evidence on this needs to be examined closely; I deal with it under “Disposition”.

19 Carian suffered a significant head injury and was in a coma for a long period. He had numerous injuries including paralysis of his left arm and severe fractures of his left leg. Elton sustained injury including a fracture of the left upper leg.

20 The police did not investigate the accident until March 1995.

The First Instance Judgment

Findings of Credit

21 The trial judge, Garling DCJ, did not accept any of the evidence given by a Mr Caton who was at school with both Carian and Elton and gave evidence of alleged conversations with Elton (Red, 56H-X). (This is not at issue on appeal.)

22 Other than for Mr Caton, the trial judge found it very difficult to decide this case on the demeanour of various witnesses. The accident occurred ten years ago. It was clear that everyone was struggling to remember clearly what happened and what they had said previously. The trial judge thought all of them, other than Mr Caton, were attempting to do their best to give accurate evidence (Red, 62T-63H).

Findings of Fact

23 Carian did have experience in riding a trail bike and had ridden one from time to time at the Jones’ property. Elton had little experience riding a trail bike (Red, 56Y-57L).

24 The trial judge appeared to accept Elton’s evidence that the reason he told Carian in hospital that he did not know who was riding the bike and suggested they get hypnotised was because he was feeling pressured and threatened by people (not Carian) who believed he was the driver (Red, 57L-58B).

25 There is no doubt that, at the time of the accident, they were travelling towards Bowan Mountain where Elton resided with his father. Aside from it being suggested that it was Elton’s idea to take this road and go up there, the trial judge was not sure how this helped to determine who was actually driving the bike at the time (Red, 58C-G).

26 The trial judge relied on Elton’s evidence that he travelled to school along Grose Vale Road to find that he knew the road (Red, 58H).

27 There was confusion about which side road the boys turned down, off Gross Vale Road, and a possible weakness in Elton’s evidence in this respect (Red, 58J-Q).

Physical Evidence

28 The court was invited to draw the inference that the person found closest to the bike was the rider. The expert evidence on the significance of the respective positions of Carian, Elton and the bike after the accident varied, and the trial judge noted that there could be varying scenarios which compete with the inference suggested (Red, 59D-V).

29 The trial judge was not sure that any inference could be drawn from the injuries to Elton’s left wrist (Red, 60A).

30 The marks on the tree were consistent both with Carian being the passenger, and on the evidence of Elton’s expert, Mr Moir, with Carian being the driver (Red, 60A-E).

31 Various competing inferences could be drawn from Carian’s lower leg injuries (Red, 60F-I).

Elton’s evidence

32 It was conceded that the turn-off onto the side road was a place where the rider and passenger could have changed places. However, the trial judge did not find this very helpful. They could have changed places anywhere along the road, after leaving the paddock (Red, 60J-N).

33 Elton gave evidence that he recalled seeing bright reflectors as they came around a bend and that he noticed that the surface of the road was brand new. (The trial judge did not directly mention this evidence, but alluded to it in the following comments.)

34 The trial judge found the evidence of Constable Barnes, that there was a new section of road, to be just as strong as Mr Cooper’s (that there were no roadworks in this area at the time). Based on Constable Barnes’ evidence, the trial judge did not reject Elton’s memory that he noticed reflectors and that the surface of the road was new (Red, 60O-V).

35 There was no evidence other than commonsense evidence that the person in front (driving) would have a better view of the reflectors and road works than the passenger. But there was no evidence that the passenger could not have observed those matters by looking to the side of the bike as it travelled along (Red, 60W-61B).

36 The trial judge inferred that the apparent inconsistencies in the accounts Elton gave to different people immediately after the accident could be explained by the fact that he was badly injured at the scene of the accident (Red, 61H-Q).

37 There was no evidence, so the trial judge could not draw an inference as to why Elton had no memory from 200 metres prior to the accident, although it appears he probably did not sustain a head injury (Red, 61R-62G).

38 Although Elton did speak to various people, and particularly Mr Cooper, at the scene of the accident, there was no expert evidence which would allow the judge to find that Elton did have a memory and that he was not providing that memory because, if he did, it would show he was the driver of the bike (Red, 62H-K).

Mr Cooper’s evidence

39 The crux of Carian’s case was that whilst he had no memory of what actually happened, Mr Cooper, who was the first person on the scene and a totally independent witness, gave clear evidence that Elton admitted he was driving the motorcycle at the time it collided with the tree (Red 63I-M, 68H-J).

40 The trial judge analysed Mr Cooper’s evidence in some detail (see Red, 63S-66S).

41 Mr Cooper was firm that when he asked Elton “who was riding the bike?”, Elton said that he was riding the bike (Red, 65P-S, 66Q-S, 66Y, 67K-L).

42 The only reasons the trial judge would have any doubts about Mr Cooper’s evidence were

(b) It may be that Elton expressed himself poorly or that Mr Cooper misunderstood him, especially when Elton was injured and in pain,

(c) There was a lot going on at the scene: MR Cooper was attending to Carian and Elton, getting blankets, trying to ensure Elton did not lose consciousness or go into shock,

(d) The next time he had to remember the accident was some months later when he was speaking to police, and

(e) No note or record of the conversation he had with Elton was made at the time of the accident or at the time of the police investigation (Red, 67E-Z).

43 Mr Cooper’s evidence was that Elton did not appear to have any difficulty understanding him or answering his questions. However, Elton’s father said his son was hysterical and in extreme pain (Red, 68P-S).

44 The trial judge had to weigh up Cooper’s evidence against the following:

(b) The ambulance report records: “Elton, sixteen-year-old male, pillion on motorcycle, into tree, high impact”, the trial judge concluding that that information must have come from Elton. The hospital was also told that he was the passenger (Red, 69K-U).

45 On the other hand:

the accident is my fault

(b) Carian gave evidence that Elton suggested hypnosis to find out who was driving. (However, this was explained by the fact of significant pressure being applied to Elton and it is difficult to grasp the significance of his having said this (Red, 69Z-70C).)

46 Having gone through the evidence in detail, the trial judge concluded that the weight he could give to Mr Cooper’s evidence was not sufficient to allow him to find that Elton, when speaking to Mr Cooper, meant to convey to him that he was the driver or in control of the bike at the time of the accident (Red, 70D-F).

47 The trial judge’s view was reinforced by the fact that:

(b) Elton was not the instigator of the ride,

(c) Elton had little or no experience riding or controlling a motorcycle of this size,

(d) On the evidence of Mr Moir (the respondent’s expert), it was most unlikely Elton would have had the ability to control the bike prior to the accident,

(e) There was no evidence that Elton was giving untrue evidence when he said that from 200 metres out from the scene of the accident he had no further memory,

(f) There was no evidence of any change of driver in that short period, and

(g) Aside from Cooper’s evidence, the trial judge saw nothing to convince him that Elton was the driver of the bike (Red, 70F-P).
Presumption of continuance

48 The trial judge took into account the presumption of continuance as one of those matters to be taken into account (Red, 70Q-U).

Expert Evidence

49 Mr Moir provided a report and gave evidence at trial. Mr Griffiths and Mr Jamieson (the principal appellant’s experts) provided reports and gave evidence in one of the previous trials. Mr Griffiths and Mr Jamieson did not agree with each other on all matters (Red, 70U-71A).

50 The trial judge was impressed with Mr Moir’s evidence, but it had the basic weakness that it depended upon a number of factual assumptions he had made being correct (Red, 71A-P).

51 The trial judge implied that he found the scenario posited by Mr Jamieson improbable (Red, 71U-Y).

52 While, if he had to pick one, the trial judge would have picked Mr Moir’s view, the trial judge did not accept the opinions of the experts as being opinions which could conclusively decide the outcome of this case (Red, 72D-F).

Conclusions

53 In addition to the findings already made, the trial judge found that the motorcycle collided with a tree while driven or controlled by Carian. Elton was a passenger on the back of the motorcycle. Carian was negligent in the way he drove the motorcycle and, as a result, Elton sustained injury (Red, 72H-M). The trial judge thus found for Elton in all four matters.

DISPOSITION

54 Contributory negligence was not at issue on appeal. The appeal grounds were numerous, but essentially sought to challenge the trial judge’s conclusion as to who was the driver of the trail bike. The principal appellant’s primary contention was that the trial judge erred in not being satisfied that the evidence of Mr Cooper was sufficient to make a finding that Elton, by way of admission, meant to convey to Mr Cooper that he was the driver and in control of the trail bike. In addition, there was said to be no or inadequate reasons in a number of respects, particularly in relation to rejection of the principal appellant’s expert witnesses Messrs Jamieson and Griffiths.

55 The fourth appeal brought by Mr Ivan Jones as owner of the vehicle, relied on an overarching ground. It was submitted that where the identity of the person in control of the motorcycle was equivocal and insufficient to enable an inference to be drawn either way, the trial judge ought to have entered a verdict for the defendant (and now respondent) in each matter. There should in consequence have been a verdict for Elton in the Carian matters and Jones in the Elton matter, as, it was submitted, the plaintiff had failed to discharge the onus upon him. Mr Jones relied in particular on this passage in Luxton v Vines (1952) 85 CLR 352 at 358 where the majority of the High Court (Dixon, Kitto and Fullager JJ) stated:

Richard Evans & Co Ltd v Astley

56 The parties join issue on whether the identity of the driver was, on the evidence, merely a matter of conjecture.

The Objection

57 It is convenient to start with an objection, rejected by the trial judge, to certain questions put to Mr Cooper at T, 126.10-.32. The principal appellant’s counsel at trial put that the questions were unfair and confusing and should not have been allowed, contending there was no evidence from Elton that laid any ground for the questions. Elton maintained that he had no recollection of talking to Mr Cooper.

58 Thus before Garling DCJ, counsel for Elton (in the Jones appeal) put to Mr Cooper a question and answer from the first trial:

‘Q: You see, I put to you this: if Mr Elton said, ‘We were riding on the bike and talking to each others, and an accident occurred’, that would be just as consistent with your memory today, wouldn’t it, as to what you’ve told us?’
And your answer was:
‘A: If that is what he said to me?

Q: Yes.
A. That’s more or less what he said to me.

59 Such a question is consistent with a cross-examiner exploring the possibilities of the conversation and testing the recollection of the witness. There was a sufficient factual basis for the question in the evidence of Mr Cooper himself. Counsel for Elton was reading from sworn evidence of Mr Cooper of what he had been asked and answered without objection on an earlier occasion.

60 Counsel for Elton was entitled to put a number of variations of the conversation to Mr Cooper. This is particularly given that Mr Cooper’s recollection had been shown to be imprecise in other respects, for example, in relation to the location of the injury to Elton’s left leg.

61 Moreover, Mr Cooper understood the question to be hypothetical, and he qualified his answers accordingly. For example, when the proposition was put to him a second time at Black, 136F-H, he said that Elton had said to him “Words of that effect, by memory.”

62 Thus, I consider Garling DCJ did not err in allowing the question. In any case, as will become apparent from the analysis below, the trial judge did not attribute great weight, if any, to this particular evidence from Mr Cooper.

Treatment of Mr Cooper’s evidence

63 The trial judge correctly acknowledged that Mr Cooper’s evidence of the alleged admission by Elton was crucial to the principal appellant’s case:

“The problem I have to look at is this. Obviously from both the plaintiffs’ points of view this is a fairly critical issue and the critical issue is this that, if one looks at Elton’s version, it is quite consistent with what might have happened until you have the evidence from Mr Cooper.

64 The most significant part of Mr Cooper’s evidence was his cross-examination by Mr Russell SC, parts of which the trial judge quoted at Red, 65W-66F:

“Q. Then you asked him, “Who was riding the bike?”, correct?
A. That’s correct.

Q. He said, he was.
A. That’s right.

Q. You didn’t ask him, ‘Were you the rider of the bike?’, did you?
A. I think my words were, ‘Who was riding the bike?’

Q. So you didn’t ask him, ‘Were you the rider of the bike?’, did you?
A. No, but in plain English that I use every day I think me and him both knew what I meant.

Q. You certainly knew what you meant, didn’t you?
A. Mm’hm.

“Q. At one stage you asked him, ‘How did the accident happen?’, is that right?
A. I think we mentioned that, yes.

Q. The boy you spoke to said, ‘We were talking, not paying a lot of attention and we hit the tree.’ Isn’t that what he said to you?
A. Words of that effect, by memory.

65 The trial judge accurately set out what he was required to do with Mr Cooper’s evidence at Red, 68L-O. He had to look at what was actually said, how accurate Mr Cooper’s memory was, what Elton meant when he said what he said, and what weight he could give to Mr Cooper’s evidence. He then commented on the above passage of cross-examination as follows:

“There is a passage of cross-examination at pp135-136 which I have previously read out in Mr Russell’s cross-examination which I think is of some significance. One of the issues which has been raised is what the word ‘rider’ means and in fact, if you literally take Mr Cooper’s evidence to this Court, he used the word ‘we’. I do not think that was actually meant, I should say, I think everyone has accepted that his earlier evidence was of a more accurate nature but what does the word ‘rider’ mean. That was a matter that was raised before the Court of Appeal and I have deliberately used the word ‘driver’ and ‘passenger’ because, I suppose, it is possible that not Mr Cooper but Elton misunderstood the meaning of the word ‘rider’ when was asked the question and he could, I suppose, be ‘rider’ as in ‘driver’ or riding on as in ‘passenger’ or, as Mr Cooper agreed, that there was a conversation to the effect ‘we were talking, not paying a lot of attention, and we hit the tree.’ ‘So when he gave you that evidence he was telling you not particularly what happened to him but what happened to the two of them, is that right?’, answer ‘Yep’, which, as I understand, is an agreement.” (Red 68S-69F)

66 The reference to the part of Mr Cooper’s cross-examination in which he used the word “we” was to the latter half of the passage quoted above (“we were talking…”) (Black 1, 136D-Q). The “earlier evidence”, which the trial judge considered to be more accurate, was the first half of the passage (“who was riding the bike?”) (Black 1, 135T-Z). Thus, it is apparent that, in terms of “what was actually said”, the trial judge accepted Mr Cooper’s evidence that he asked Elton “who was riding the bike?” and that Elton replied that he was. The trial judge preferred this evidence, considering it to be more accurate than the evidence Mr Cooper gave in response to the hypothetical proposition that was put to him that Elton had said “words to the effect” of “we were talking, not paying a lot of attention and we hit the tree”. (For this reason, the allowance of the latter question over objection when it was earlier put to Mr Cooper is of no consequence.)

67 Having accepted the accuracy of Mr Cooper’s earlier evidence, the trial judge’s comments were then directed to the difficulty in ascertaining what Elton understood Mr Cooper to have meant when he used the word “riding”. That is, the trial judge was questioning the weight that could be given to Mr Cooper’s evidence. (Despite the potentially significant difference in the meanings, in context, of the words “rider” and “riding”, nothing turns on the trial judge’s mistaken use of the word “rider” instead of “riding” at this point, when he was simply noting the difficulties involved in assessing Mr Cooper’s evidence.)

68 In terms of how accurate Mr Cooper’s memory was, the trial judge correctly took into account the fact that there was “a lot going on” at the scene of the accident and that Mr Cooper was occupied with attending to Elton and Carian, moving the bike (and Elton), getting blankets and ensuring that Elton did not lose consciousness or go into shock (Red, 67Q-X). Mr Cooper also gave evidence that his primary purpose in talking to Elton at the scene of the accident was to keep him communicating to prevent him from going into shock rather than to elicit information from him (Black 1, 123H-125H; Red, 64X-65D). The trial judge was also entitled to take into account that ten years had passed since the accident and that there may have been flaws in the memories of the witnesses, including Mr Cooper (Red, 62U-63G, 67E-I). Mr Cooper’s memory was demonstrated to be inaccurate in other respects. For example, he recalled Elton having a lower leg injury whereas in fact he had sustained a thigh injury (Red, 64L). Mr Cooper had made no note of the conversation, was not questioned about the accident by police for several weeks and even then the conversation was not recorded in the police report (Red, 64L-P, 67X-Z). It was clearly open to the trial judge to consider all of these objective factors when weighing Mr Cooper’s evidence, quite apart from any advantage he had from seeing the witnesses.

69 In terms of what Elton meant when he said that he was riding the bike, the principal appellant challenged the finding of the trial judge at Red, 70N-O that “I have no idea what was meant by the question and the answer which obviously Mr Cooper firmly believes he heard… .” He argued that there was in fact evidence as to what was meant and understood by Mr Cooper’s question “who was riding the bike”. However, what the trial judge was saying here was that the answer was not one expressed in such unequivocal terms that the only conclusion which could be drawn from it was that Elton was admitting that he was the driver of the bike at the time that it hit the tree.

70 The principal appellant contended that there was evidence from Elton before the trial judge, to which the trial judge did not refer, about what he understood Mr Cooper to have meant when he used the term “riding”. The principal appellant submitted that Elton gave evidence that his understanding was that the person who was “riding” or “the rider” was the person in charge of or in control of the bike.

71 Elton was asked:

“Q. As far as riding a motorbike is concerned at the time, and since that time, you have always been of the view that when you’ve used the term ‘riding a motorbike’, that means the person who is in control of the bike. Isn’t that correct?
A. No.

72 Elton was then taken in cross-examination to evidence he had given at the previous two trials. In relation to evidence he gave in the second trial, it was put to him:

“Q. I suggest to you that on the last occasion this matter was before the court…:

‘Q. On occasions in the past when you have been asked by people, ‘Who was riding the bike when the accident happened?’ you assumed that they meant by ‘riding’ who was in charge of the bike. Isn’t that correct?’

And your answer was, ‘Yes’. Do you recall that evidence?
A. Don’t recall it.

Q. That was the fact though, wasn’t it?
A. Yes.

Q. And the next question:
‘Q. And that is what you understand the term to mean too, isn’t it?

73 This evidence is equivocal at best. The first question is the only occasion on which Elton was asked about his understanding “at the time” and even then the question is unclear and he answers flatly “no”. The later evidence was directed to “occasions in the past when you have been asked by people”. This evidence may well have related to occasions after the accident when people asked him who was riding the bike. It could, for example, have been in a context of trying to ascertain who was responsible and influenced by a theory which circulated after the accident that a pillion passenger on a motorcycle suffers greater injury than the person in control. In this context Elton may well have understood people to be using the word “riding” to mean who was in control of the bike. Moreover, although Elton did not recall speaking to Mr Cooper, it was never put to him unequivocally that, had he been asked immediately after the accident who was riding and agreed that he had been riding, he would have intended to convey by his answer that he was in control of the bike.

74 In his official statement to police on 18 November 1994, about three weeks after the accident, at a time when Elton knew that the issue of who was in control of the bike had assumed significance, Elton used the word “rider” and “riding” in both its different senses, that is, to mean both “driver” and “passenger”. In paragraph 5 of the statement he said, “Clint and I decided to go for a ride on Bobby’s motorbike” and then in the same paragraph he said, “Clint is a better rider than me so I got on the back”. He later said, “We rode around Bobby’s front lawn” and “The bike we were riding was registered as UQ670 I think and all of its lights and that were working while we were riding it” (Blue 1, 66-67).

75 The trial judge made reference to the evidence given by Elton’s mother that when she visited him in hospital a couple of days after the accident, he said to her that “he wasn’t riding the bike” (Red, 69P; see also Black 1, 64C). Elton was here clearly using the word “riding” to mean controlling, which supports the principal appellant’s case. However, when added to the other evidence, it merely reinforces the trial judge’s finding that Elton’s use of the term in his conversation with Mr Cooper was ambiguous.

76 Taken as a whole, the evidence relating to Elton’s understanding of the meaning of the word “riding” was equivocal at best. Had the trial judge explicated the evidence in any more detail, he would, in my opinion, still have been well entitled to form the view he did, that is, that he could not make a definite finding as to what Elton had meant by his response to Mr Cooper’s question. In the hours and days following the accident, it appears Elton used it in both senses, that is, to mean both controlling the bike and riding as a pillion passenger. It cannot be said that the trial judge was clearly wrong in finding that he did not know what Elton meant when he used the word “riding” in conversation with Mr Cooper.

77 The principal appellant further submitted that an issue estoppel arose from an earlier judgment of this Court in the same matter, Carian v Elton (2000) 31 MVR 421, in relation to Elton’s understanding of the term “riding”. In that appeal, Mason P said at [27]:

“Reference to general ambiguity about the concept of ‘riding’ a motorbike is of little weight if the person said to have made the relevant admission used ‘ride’ in the sense of being in control of the bike. It would seem that Elton did use this word in this way: see White Appeal Book pp 28, 34, 36.”

78 However, the statement “It would seem that Mr Elton did use this word in this way” does not constitute a finding to that effect, as distinct from supporting a re-hearing, as would be necessary to ground an issue estoppel.

79 In assessing the weight to be given to what Elton said to Mr Cooper at the scene of the accident, the trial judge was entitled to take into account that Elton “was a sixteen-year-old at the time, he was seriously injured and he was answering a question soon after the accident” (Red, 69G-J). Although Mr Cooper gave evidence that Elton appeared to understand what he (Mr Cooper) was saying to him, Elton’s left thigh was so badly broken that it was bent back underneath him and the bone was protruding. He was screaming with pain, the extent of which may be gauged from the fact that he received seven doses of morphine in the ambulance: Blue 1, 58.

80 The trial judge also took into account the fact that in the period shortly after the accident, Elton made a number of different statements (Red, 69J-O). The information provided to ambulance officers and hospital staff, as evidenced by their reports and records, was that Elton was the pillion passenger. The trial judge correctly assumed that it was Elton who provided this information since it could not have come from Mr Cooper (who would have given a different account) and it was not suggested that it came from Elton’s father, who arrived at the scene of the accident shortly afterwards (Red, 69L-O).

81 Further, although the trial judge did not refer to this evidence, Elton made other statements which were untrue in the course of his conversation with Mr Cooper, such as that he and Carian had been at a party and that they had not been drinking (Black 1, 113V-X, 135K-S).

82 In assessing the weight to be given to Elton’s apparent admission immediately following the accident, the trial judge would also have been entitled to take into account the evidence in the ambulance and hospital records and in the physical form of the cracked helmet that suggested that Elton had sustained a closed head injury, albeit not a severe one, and had possibly lost consciousness prior to the arrival of the ambulance (Blue 1, 9M, 11G, 58F; Black 1, 197V), this being evidence the trial judge considered in relation to Elton’s loss of memory (at Red, 62B-G). Although the trial judge adverted to the possibility that Elton was dissembling when he made the later statements to the ambulance officers and hospital staff and did not make an explicit finding that he was not (Red, 61C-Q), the trial judge implicitly found that there were sufficient other explanations for the inconsistency such that he was not required to find that Elton was dissembling.

83 Ultimately, in assessing what weight could be given to the alleged admission to Mr Cooper, the trial judge found that the evidence of the conversation between Mr Cooper and Elton was not strong enough, when weighed with the other evidence, to require a finding that it was Elton who was in control of the bike (Red, 70D-P). Having thoroughly examined Mr Cooper’s evidence, the trial judge was entitled to find that it was equivocal and therefore could not be relied upon to determine who was in control of the bike at the point of impact.

Failure to address issues relating to Elton’s evidence and credit

Elton’s memory

84 An issue arose in relation to why Elton did not remember anything beyond 200 metres before the accident. The trial judge said:

“The question of why he does not have a memory from 200 metres prior to the point of impact is one of course which I have no answer to because there was no expert evidence led one way or the other. I cannot draw an inference that he should have had such a memory because if I was asked to do that I would have to say this is not the first time while hearing cases that I have heard badly injured people say they have little or no memory of what happens in and after an accident yet they are obviously fully conscious and they talk to people.

85 The principal appellant submitted that if there was no head injury then there was no apparent reason for Elton’s loss of memory and the trial judge ought to have found that the evidentiary onus passed to the defendant (Elton) to call expert evidence in order to explain the memory loss.

86 It should first be noted that the trial judge in fact found that Elton may have sustained a head injury but that it was not severe. The Nepean Hospital records, while noting at first “nil obvious head injury” (Blue 1, 9O), also record “LOC [loss of consciousness] at scene” and later that Elton had sustained a “closed head injury” (Blue 1, 11G; see also report of Ms Farrelly: Blue 1, 59Q-R). His helmet was cracked and, when Mr Cooper found him, had come off his head. His mother gave evidence that when she first visited him in hospital, he did not really understand what she was saying (Black 1, 63N-O). Elton’s own evidence that he did not sustain any head injury is not conclusive, it being unclear what he might have understood by the word “injury”.

87 Even if there were no head injury, the trial judge was here concerned with Elton’s credit. He accepted Elton’s evidence that he had no memory for 200 metres prior to the point of impact. He noted implicitly the possibility of post-traumatic amnesia, irrespective of head injury. He was not satisfied that he should disbelieve Elton simply because he did not sustain a (severe) head injury. He was entitled to accept Elton’s evidence in this regard. If the principal appellant wished to go further and ask the Court to make an adverse finding, then it was the principal appellant who bore the evidentiary onus of proving that a person without a head injury is not telling the truth if he says that he cannot remember the last 200 metres before an accident. Otherwise it is a matter of the trial judge’s assessment of the witnesses.

88 The fact that Elton offered to be hypnotised to determine who was driving the bike at the time of the accident does not, contrary to the principal appellant’s submission, indicate that he did not remember who was driving. Elton never said that his recollection was unclear, save for the last 200 metres. His evidence was clear that he offered to be hypnotised because he was feeling pressured, not because he did not remember: “With all them pressuring me, I was confident, I had nothing to hide, I put myself out there and said ‘I’ll go and do it’ to shut them up” (Black 1, 28J-29G).

Elton’s observations of the roadway

89 Elton recalled that about 200 metres before the tree he observed a new section of roadway and reflectors on the road. However, Mr Cooper did not recall there having been any roadworks in the area or reflectors on the road at the time of the accident (Black 1, 116I-M) and the principal appellant submitted that this contradicted Elton’s evidence and reflected adversely on his credit. The trial judge preferred the evidence of Constable Barnes whose evidence was that there was a new laid section of road 100 to 200 metres before the accident site but that by the time he inspected the site (some weeks later) the new part of the roadway had moved a further distance from where the accident occurred (Blue 2, 25C-F). The principal appellant submitted that the trial judge erred in preferring the evidence of Constable Barnes to that of Mr Cooper, who it was contended would have been more familiar with the road because he lived on it. However, Mr Cooper’s evidence was that he did not recall any roadworks, not that there were not any. Moreover, he was being asked to recall ten years after the accident. Constable Barnes was more certain in his recollection and was also familiar with the road because he drove along it regularly. It was open to the trial judge to prefer Constable Barnes’ evidence.

90 It was also submitted that Elton’s evidence that he had no recollection beyond 200 metres before the accident conflicted with his father’s evidence that he had told him that he could not recall anything after he got on the bike at the Jones’ property. This was said to be relevant to the issue of Elton’s observations of the roadway. However, Elton’s father gave a series of answers in cross-examination, some of which suggest that Elton told him he had no recollection after getting on the bike, and some of which would be consistent with Elton not recalling the last 200 metres. For example, at Black 1, 69V-W, Elton’s father said Elton “couldn’t remember anything about the accident. He clearly remembered up until that time” (see also Black 1, 70A-D). The evidence given by Elton’s father thus did not have the quality of incontrovertible fact such that the trial judge was required to accept it.

91 Little turns on the issue of Elton’s observations of the roadway in any case since it was really only relevant to the expert evidence as to which of the driver or passenger would have a better view of the roadway. As will be discussed below, the trial judge did not rely on any of the expert evidence to decide the case.

Elton’s statements to Carian and Bobby Jones

92 The principal appellant submitted that the trial judge failed to make any findings as to the statements allegedly made by Elton to Carian and Bobby Jones, despite having acknowledged that, coupled with Mr Cooper’s evidence, they were significant to Carian’s case (Red, 63N-R). Carian’s evidence was that Elton suggested to him that they get hypnotised (discussed above). Jones’s evidence was that, when he went to see Elton in hospital, Elton said “the accident is my fault”.

93 The trial judge did, however, make an implicit finding that he could not attribute great weight to either piece of evidence (Red, 69V-70C). In respect of Jones’s evidence, this was because there was very strong evidence that Jones’s memory was unreliable. In relation to the offer of hypnosis, the trial judge could not attribute great weight to the evidence because it was “hard to know what that all means”, that is, it was difficult to interpret this evidence and its significance to the issues of Elton’s memory and his credibility. This is particularly in light of the fact that there was evidence that Elton was under pressure at the time he had this conversation with Carian, due to circulation of the theory that the pillion passenger sustains more serious injuries than the driver.

94 The remaining issues raised by the principal appellant concerning Elton’s credit are in my opinion minor and of little weight.

Rejection of the Expert Evidence

95 After considering the expert evidence, the trial judge found that while, if he had to choose one expert opinion to accept, he would have chosen that of Mr Moir (the respondent’s expert), he did not intend to accept any of the opinions of the experts as being an opinion which could conclusively decide the outcome of the case (Red, 72D-F).

96 The principal appellant submitted that the trial judge had been looking for a level of certainty in the expert evidence beyond that which was required; that he was only required to be satisfied on the balance of probabilities. However, each piece of evidence upon which a judge reaches a conclusion on the balance of probabilities is not itself to be assessed simplistically on the balance of probabilities. Each strand of evidence must be tested before an ultimate conclusion is reached on the balance of probabilities. Nonetheless the practice of combining the over 50% but less than 100% probability of each element may still allow the judge (or jury) to be satisfied on the balance of probabilities; though mathematically the combination of (say) 16 x .6 x .6 is 0.216; see the Hon Mr Justice D H Hodgson, writing extra-judicially “The Scales of Justice: Probability and Proof in Legal Fact-finding” (1995) 69 ALJ 731 at 746-8 “combining probabilities”. If an expert says that a particular conclusion is probable but not inevitable, that does not mean that because that conclusion satisfies the test on the balance of probabilities, therefore it is necessarily determinative. Rather it is one strand of evidence with which the other evidence must be weighed. The trial judge here was not required to accept any of the expert evidence if he did not consider that it advanced the parties’ cases.

97 The principal appellant contended that, on the basis of its experts’ evidence, on the balance of probabilities, the driver would end up closest to the bike and Carian ended up closest to the bike. The problem with the expert evidence, correctly identified by the trial judge, was that none of the experts could come to any conclusion except on the basis of factual assumptions that were never proved, such as the force of the impact and whether the driver hung on tight to the handlebars or was bounced off the bike on impact. Numerous factual scenarios were available to explain the uncontroverted physical evidence such as the marks on the tree and on the bike and the position of the bike and of the riders after impact.

98 The principal appellant further submitted that the trial judge did not give adequate reasons for rejecting the evidence of the principal appellant’s experts, Mr Jamieson and Mr Griffiths. He submitted that, in light of their evidence, the trial judge ought to have drawn the inference that the person who ends up closest to the bike after the accident was the driver. The principal appellant also submitted that, although the trial judge did not accept their opinions as being able conclusively to decide the case, it is not apparent from his reasons what assistance he did draw from them.

99 In my opinion, the trial judge gave sufficient reasons for not accepting or not deriving assistance from the expert evidence. In relation to all three experts the trial judge noted that they were required to work out, from no more evidence than he had before him, how the accident occurred (Red, 71E-M). The trial judge also noted that each of the experts conceded that their opinions depended on the factual assumptions they had made being correct (Red, 71B-E, R-T). In relation to the principal appellant’s experts, the trial judge considered it significant that they did not agree with each other on all matters (Red, 71T, Y).

100 Mr Jamieson’s theory assumed that the driver of the bike would have perceived the danger and reacted in time and in a particular manner (for example, by keeping the bike upright and ducking the tree). Although the trial judge did not say so, it is implicit in his judgment that he considered this theory improbable (Red, 71U-Y). Cross-examination of Mr Jamieson (in the second trial) demonstrated that the scenario he put forward was highly unlikely. The cross-examination established that:

(b) However, these perception reaction times apply to sober, experienced drivers, driving in daylight and paying attention (Blue 3, 153S-Z). A 15 or 16 year old boy who had consumed five or six beers would have a slowed perception reaction time (Blue, 3, 151L-U),

(c) Given the length of the gravel shoulder onto which the motorcycle veered before hitting the tree and the estimated speed at which it was travelling, Mr Jamieson agreed that the driver in this case would have had about two-thirds of a second to perceive and react to the tree (by ducking or avoiding) (Blue, 154A-C), and

(d) Moreover, the Hurt Report, which Mr Jamieson cited in his own report, found that only 2% of motorcycle riders made any evasive manoeuvre with their body before a collision and over 90% simply remained frozen in their seated position until the point of impact (Blue 3, 149O, 157O-S).

101 Mr Jamieson also conceded in cross-examination that the there was no explicit written support for the proposition that the controller of a motorcycle tends to stay close to the rest position of the motorcycle in the source to which he attributed it. Rather, he derived this conclusion from photographs contained in the article, which did not show the riders in their final rest positions and which depicted a frontal impact rather than a side impact as occurred in the accident in this case (Blue 3, 107G-109A).

102 In keeping with the principles applicable to expert opinion evidence stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 744, it must be established that the facts on which an opinion is based form a proper foundation for it; the relevant fact here being the conclusion reached by another expert. The material must be reasonably capable of supporting the inferences drawn. I am not persuaded that it was possible to draw the inference contended for by Mr Jamieson from the photographs. Mr Jamieson himself conceded that the crash under consideration in this case was “totally different” from the type of crash considered by his source (Blue 2, 150C). Another of the sources upon which Mr Jamieson purported to rely (the Hurt report) was also shown not to advance the issue of the relative rest positions of the motorcycle, driver and pillion (Blue 3, 114J, 154Y-156D).

103 Mr Griffiths concluded in his report that three of the four “indicators” of who was the driver and who was the pillion on the motorcycle indicated that Elton was the driver. These four indicators were observation, statements, injury patterns and post-crash rest positions (Blue 2, 127J-O). However, Mr Griffiths’ opinions in relation to all three indicators which, in his opinion, supported the conclusion that Elton was the driver (statements, injury patterns and post-crash rest positions) were struck out in an earlier trial. This left only the uncontroverted facts upon which his opinion was based, for example in relation to the location of the boys’ injuries. Only the fourth and final indicator, “observation” was left in. This was Bobby Jones’ evidence that he observed Carian driving the bike when the boys left the property. Thus, it in fact indicated that Elton was not the driver.

104 The trial judge noted that Mr Griffiths conceded (at Blue 3, 73B-L) that he could not have drawn the inference he did, that it was more probable that Elton was the driver, on the basis of only the observation and post-crash rest position material (Red, 72B-C). (I note that the trial judge’s analysis and counsel’s written submissions before this Court proceeded on the mistaken understanding that Mr Griffiths’ evidence in relation to post-crash rest positions was left in. Oral submissions before this Court established that the conclusions Mr Griffiths drew from the rest positions had in fact been struck out in an earlier trial: see T, 60.15-63.20; see also “Further Written Submissions for Respondent”, 6 April 2006, [18].) I accept the respondent’s submission, as the trial judge did, that once those aspects of his evidence were struck out, Mr Griffiths could not come to the conclusion he did, that it was more probable that Elton was in control of the bike.

105 The principal appellant further contended that the opinions of its experts were consistent with common sense. The principal appellant relied on a passage by Murphy J in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 725 to the effect that the court does not require expert evidence where “it is common knowledge that a relationship of cause and effect may exist between certain facts or events”. In this case, however, it cannot be said that common sense dictates that the driver of a motorcycle would necessarily hang on tightly to the handlebars and therefore end up closer to the bike. It would be equally consistent with common sense for the driver to see the tree looming ahead and let go. Common sense is not determinative either way.

106 The principal appellant also submitted that the trial judge erred to the extent that he relied upon the evidence of the respondent’s expert Mr Moir because Mr Moir was in effect acting as an advocate for the respondent rather than as an independent expert. In the principal appellant’s submission, this was demonstrated by the fact that Mr Moir was adamant that if he had had additional information such as the opportunity to inspect the motorbike, the marks on the road and the tree and accurate information as to speed, this information “would not have changed the overall thrust of the conclusion or the conclusion itself that [he] reached” (Blue 1, 262P). The trial judge commented that the fact that Mr Moir was so firm in his conclusion worried him (Red, 71B).

107 However, it was clear that what Mr Moir was trying to convey during cross-examination was that while any additional information would have been useful, it was not crucial to his conclusions. The absence of that information did not prevent him from confidently drawing the inferences that he drew. I would reject the submission that, in giving this evidence, Mr Moir was acting as an advocate. In any case, it is clear that the trial judge did not accept the evidence of any of the experts, including Mr Moir. He found that Mr Moir’s evidence, while it was logical, impressive and thoughtful, still suffered from the basic weakness, common to all the expert evidence, that it depended on all his factual assumptions being correct (Red, 71N-P).

108 It was clearly open to the trial judge to make the observations he made in relation to the expert evidence and to conclude that he could derive little assistance from it. Although, in the interests of clarity, I have amplified what I take to be his reasoning, the trial judge gave sufficient reasons for so concluding.

Whether there was insufficient evidence to draw any inference either way as to who was the driver to satisfy burden of proof on the issue

109 Counsel for Mr Jones, in his appeal against Elton, submitted that the trial judge fell into error to the extent that he felt compelled to decide who was in control of the motorcycle at the time of the accident. Mr Jones further contended that there was insufficient evidence from which the trial judge could draw the inference he ultimately drew.

110 At the beginning of his judgment, the trial judge said:

“This is a difficult case. It is made more difficult by the fact that, in the end, whilst I will make a decision, there will be no definitive evidence as to who the actual driver was. For either to succeed an inference based on the evidence would have to be drawn.” (Red, 50S-W)

111 Later, after concluding that he did not intend to accept the expert evidence as conclusively deciding the case, the trial judge said, “accordingly, for all those reasons I have given and having to draw an inference, I make these findings…” (Red, 72E-G) [emphasis added]

112 I do not think that the trial judge, properly understood, was here using the language of compulsion. In the first passage, he was simply commenting on the rather unsatisfactory state of the evidence, and presaging his conclusion that, on the evidence he was about to analyse, he was nonetheless able to draw an inference as to who was the driver. In the latter passage, he was again stating that if a finding was to be made, it would necessarily be an inference drawn from the evidence, there being no definitive evidence. He was not suggesting that he considered himself compelled to make any finding. In any case, because I find that the inference was open on the evidence, it is not necessary to go further.

113 Counsel for Jones submitted that there was inadequate evidence available to found the inference that Carian was the driver of the motorcycle at the time of accident, or indeed any inference as to which boy was the driver. Neither Carian nor Elton could give evidence as to what happened, there were no eyewitnesses, the police did not attend in a timely fashion and there were no photographs taken in a timely fashion. Jones submitted that, in these circumstances, Luxton v Vines (supra) applied and the trial judge should have declined to make a finding.

114 In Luxton v Vines, the plaintiff was found injured on a road apparently having been hit by a motor vehicle. However, there was not sufficient evidence to support a finding that he was struck due to negligence on the part of the driver. Rather, the circumstances gave rise to conflicting conjectures of equal probability such that no inference of fault on the part of the driver could reasonably be made. Similarly, in Van Eeden v Henry (2005) 42 MVR 375, a case involving a collision between two cars on a remote rural road, there was nothing in the objective circumstances of the accident to enable the Court to draw an inference of negligence on the part of either driver.

115 In Luxton v Vines, there were numerous possibilities as to how the accident occurred, none of which was more probable on the evidence than the others. In the present case, however, there are only two possibilities: either Carian or Elton was in control of the motorcycle. Thus there was (at least) a 50% possibility from the outset that Carian was the driver. To establish a greater than 50% probability imposes only a minimal obligation. Moreover, it was not in dispute in this case that whoever was in control was negligent. This distinguishes it both from Luxton v Vines and from the situation which arose in Van Eeden, where the question was essentially whether the facts that had been established were sufficient to ground an inference of negligence on the part of one of the drivers.

116 The proposition stated by Lord Denning in Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 at 1476-1477 that where only one of two parties is to blame, but clearly not both, the judge ought to make up his or her mind between them, was disapproved by the High Court in Nesterczuk v Mortimore (1965) 115 CLR 140 at 156-8. Nesterczuk was followed by the Victorian Court of Appeal in Maher-Smith v Gaw [1969] VR 371 at 373, in which the Court added that acceptance of the proposition stated by Lord Denning would rule out the application of the burden of proof rule. That rule, in cases of this kind, is that the judge must be satisfied on the balance of probabilities.

117 While the approach taken by the High Court is no doubt correct, it is also true, as Mason P said in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 317 (in the context of a case where there were multiple defendants and the plaintiff was uncertain as to which was responsible for his injury) that:

Adelaide Stevedoring Co Ltd v Forst

Tubemakers of Australia Ltd v Fernandez

118 Although in this case the trial judge’s conclusion fell short of certainty, it cannot be said that he was engaging in mere conjecture. Though the state of the expert evidence did not really advance the trial judge’s opinion, there was sufficient other evidence from which he could draw the inference that, on the balance of probabilities, Elton was not the driver.

119 This evidence included the fact that Elton was a passenger when they left the Jones’ property, that he was not the instigator of the ride, that he had little or no experience in controlling a motorcycle of this size, and that it was most unlikely that he would have had the ability to control it prior to the accident as set out by Mr Moir (Red, 70F-J). I interpolate that Carian himself also gave evidence that experience was required to operate a motorcycle of this size (Black 1, 107K-O). Here I do acknowledge that Elton’s lack of experience cuts both ways, in that the occurrence of the accident is also consistent with an inexperienced rider attempting to drive the bike and crashing it.

120 Although the trial judge did not make an explicit finding that he accepted Elton’s version of events, and stated that the case was very difficult to decide on the demeanour of the witnesses (Red, 62U), it is apparent from his analysis of the evidence throughout the judgment that he did largely accept Elton as a credible witness (noting only one possible weakness in his evidence in relation to which roads the boys rode down: Red 58O). The trial judge explicitly accepted Elton’s evidence in relation to his observations of the roadway (Red 60U) and his evidence of his lack of recall, in the absence of contradictory expert evidence (Red, 70J-K). The trial judge also accepted that what he told ambulance officers and hospital staff after the accident was consistent with the evidence he subsequently gave in court (Red, 61N-Q). The trial judge noted at Red, 68G that Elton’s version was quite consistent with what might have happened, but for Mr Cooper’s evidence. Having analysed Mr Cooper’s evidence, the judge then went on to find that he could not give this evidence, being the only evidence to contradict Elton’s case, sufficient weight to allow him to find that Elton was not the passenger (Red, 70L-P). As Handley JA (with whom Fitzgerald JA agreed on this issue) found in the previous appeal in this matter, Carian v Elton (2000) 31 MVR 421 at 430 (Fitzgerald JA agreeing on this issue at 432):

Abalos

Abalos v Australian Postal Commission

‘… when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Prof Ferguson or Mrs Archer, demeanour or credibility played no part in her findings.’”

121 The trial judge was also entitled to draw some assistance from the presumption of continuance (Red, 70Q-T), which he did, without giving it a higher status than the other evidence and whilst weighing it against the accompanying facts; see Carian v Elton (2000) 31 MVR 421 at 427 and 431.

122 Thus, there was sufficient evidence to found the inference that, on the balance of probabilities, Carian was driving the bike when it hit the tree. Such a finding was not glaringly improbable on the evidence, nor was it inconsistent with incontrovertible facts: Fox v Percy (2003) 214 CLR 118.

OVERALL CONCLUSION AND ORDERS

123 Accordingly, and having had the advantage of reading Tobias JA’s judgment in draft, for both his reasons and mine I consider each appeal (40265/05; 40267/05 and 40268/05) should be dismissed with costs. I propose orders as follows:

(2) Appellants to pay the respondent’s costs of the appeal and to have a certificate under the Suitor’s Fund Act if otherwise entitled.

124 TOBIAS JA: In this matter I have had the benefit of reading in draft the judgment of Santow JA with which I generally agree. However, I wish to briefly indicate my own reasons for disposing of the appeals in the manner his Honour proposes.

125 Santow JA has comprehensively detailed the undisputed facts, the evidence relevant to the disputed facts, the findings of the primary judge and the contentions of the parties. I shall only repeat those matters to the extent necessary to explain my own approach to the appeals.

126 The crucial issue in the case was whether Elton or Carian was in control of the motorbike at the time of the accident. As the primary judge observed (at Red 55H-K), Elton’s case was simple. There was no dispute, at least up until the time they left the Jones’ property and headed onto Gross Vale Road, that Carian was the driver and Elton was the pillion passenger on the motorbike. The accident occurred approximately three to four kilometres from that point. Carian had no memory whatsoever of the accident or the events leading up to it. Elton only remembered events up to 200 metres before the point of impact. He said that up to that stage he was the pillion passenger and Carian the driver. He had no recollection of the accident itself.

127 Leaving to one side the evidence of the expert witnesses, the only other factual evidence was given by Mr Cooper. Both his Honour and the parties accepted that it was Mr Cooper’s conversation with Elton at the scene of the accident that was, relevantly, the only evidence capable of contradicting Elton’s evidence that, up to 200 metres before the tree with which the motorbike collided, Carian was the driver and Elton the pillion passenger.

128 The critical evidence at Black 1/113Y-X was that while Elton was lying on the road, Mr Cooper asked him where they had been and was told that they had been at North Richmond at a party. When asked if they had been drinking, Elton replied ‘no’. Mr Cooper’s evidence continued in these terms:

“I asked who was riding the bike and he said he was”.

129 The primary judge concluded that from Mr Cooper’s perspective, he clearly believed that Elton was telling him that he was riding the motorbike in the sense that he was its driver. The real question for determination by his Honour was whether Elton, in answering Mr Cooper’s question, intended his answer to convey that meaning.

130 The primary judge recognised that this was the critical issue in the following passage from his judgment (Red 68E-O):

“The problem I have to look at is this. Obviously from both the plaintiffs’ points of view this is a fairly critical issue and the critical issue is this that, if one looks at Elton’s version, it is quite consistent with what might have happened until you have the evidence from Mr Cooper.

If you look at Carian’s version it depends largely on what Mr Cooper says, in other words, without his evidence I doubt whether Carian would be mounting a strong case that he was a pillion passenger. There would certainly be other matters which I have referred to in detail but this very vital piece of evidence is the piece of evidence upon which the Court really has to base their findings or use as a starting point for those findings. The problem I have to look at is what was actually said, how accurate is Mr Cooper’s memory, what did Elton mean when he said what he said and what weight can I give to this piece of evidence, as I said, standing out and being quite important.”

131 It is important to observe that Mr Cooper’s actual words were “who was riding the bike?”, not “who was the rider of the bike?”. His Honour recognised that there could be a distinction between “rider” as in “driver” or “riding” as in “passenger”. However, as his Honour acknowledged (at Red 70D-G) the question was whether:

“Elton, when speaking to Cooper, meant to convey to him that he was the driver or in control of the bike at the time of the accident.”

132 Carian submitted that the answer to that question was to be found in the cross-examination of Elton at Black 37-39, the relevant parts of which I set out hereunder:

“Q. As far as riding a motorbike is concerned at the time and since that time, you have always been of the view that when you’ve used the term ‘riding a motorbike’, that means the person who is in control of the bike. Isn’t that correct?

A. No.

Q. Is that so? You’d dispute that would you?

A. If I went riding with someone and I was on the back, I’m still riding with them.

Q. When you have used the term ‘riding a motorbike’, you have been referring to being in control of a motorbike. Isn’t that right? That’s evidence that you’ve given, I suggest to you, on two previous occasions.

A. If it says I said it, I’ve said it.

Q. You have said it, haven’t you?

A. I don’t recall.

Q. That was the fact, though, wasn’t it? Isn’t that right? That it was always your view, in your mind, that if a person was riding a motorbike, they were the person who was in control of the bike? Is that correct?

A. No.

Q. You say no to that, do you? Are you serious about that?

A. Can you re-say it?

Q. Where you have said, at any time since this accident, used the term or the words ‘riding a motorbike’, you intended that term to mean, or you understood it to mean, a person who was in control of the motorbike. Isn’t that right?

A. Maybe.

Q. It’s the fact isn’t it, Mr Elton? That was the evidence that you’ve given.

A. Yes, then.

Q. You know it’s the evidence that you gave.

A. I don’t remember giving it.

Q. This question was put to you on the occasion before last in connection with these proceedings. Page 36 at (g):

‘Q. On occasions in the past when you have been asked by people, “who was riding the bike when the accident happened?” you assumed that they meant by “riding” who was in charge of the bike. Correct?

Isn’t that right?

A. Yes.

Q. That’s the evidence that you gave. I suggest to you that on the last occasion this matter was before the court, this is page 44, at 55:

‘Q. On occasions in the past when you have been asked by people “Who was riding the bike when the accident happened?” you assumed that they meant by “riding” who was in charge of the bike. Isn’t that correct?

And your answer was “Yes”. Do you recall that evidence?

A. Don’t recall it.

Q. That was the fact, though, wasn’t it?

A. Yes.

Q. And the next question:

‘Q. And that is what you understand the term to mean too, isn’t it?

A. Yes.’

Isn’t that correct?

A. Yes.”

133 Some 10 pages of transcript prior to the above exchange (at Black 27-29), Elton was cross-examined with respect to a conversation in hospital between himself and Carian who, to Elton’s knowledge, had no memory of the accident. Carian had asked Elton who was riding the motorbike, and Elton replied that they should both see a hypnotist in order to refresh their memories of the events. It was put to him that he had made that suggestion because he had a serious doubt in his mind as to who was the rider of the motorbike at the time of the accident. His response was that he just wished to get “the pressure off me” (see Black 27W-X).

134 The evidence established, and it was not challenged, that during this period Elton was being placed under significant pressure by various people (excluding Carian) to concede that he was the rider of the motorbike and not the pillion passenger: see Black 28N-Y.

135 It was no doubt in the context of being pressured after the accident to accept that he was the driver of the motorbike that those parts of Elton’s evidence in the earlier proceedings were put to him in the exchange which I have set out in [132] above. The earlier questions to Elton were prefaced upon him being asked after the accident by people as to “who was riding the bike when the accident happened”. Elton agreed that he understood that question as one seeking to ascertain who was the rider in charge of the motorbike at the time of the accident. Given the time when the question was being asked by various third parties, and the context in which it was asked, it could only have one meaning, namely, who was the driver of the motorbike when it collided with the tree.

136 Although the question related to Elton being asked after the accident who was the rider of the motorbike in the sense of the person in charge or in control, Carian submitted that the gravamen of the questions at the time they were asked reflected Elton’s understanding of the same question when it was asked of him by Mr Cooper at the scene of the accident. In other words, it was submitted that it should at least be inferred that when he was asked by Mr Cooper “who was riding the bike”, he understood the question to be asking who was in control of the motorbike, or who was the driver, at the time of the collision.

137 In my opinion, such a contention should be rejected. The context in which the questions were asked on the earlier occasion when Elton gave evidence, and which related to the question “who was riding the bike when the accident happened?” being asked of him by persons subsequent to the accident, made it tolerably clear that those questions were asked at a time when Elton was under pressure to concede that it was he, and not Carian, who had control of the motorbike. There is no doubt that he then understood that the questions sought to at least suggest that he was the driver of the motorbike at the time of the accident. But it does not follow that that was his state of mind or understanding of Mr Cooper’s question when he lay in agony on the ground immediately following the accident with a badly broken leg.

138 That this was not his understanding at the time of the accident is confirmed to a degree by his statement to the police dated November 1994, some three weeks after the accident. It is apparent from his statement (at Blue 166-167) that he was using the word “riding” in the sense that both he and Carian were on the motorbike. In that statement he also said that

“Clint [Carian] is a better rider than me so I got on the back.”

139 Elton at all times maintained that at the time of the accident he was the pillion passenger on the motorbike. That fact was recorded in both the ambulance report (Blue 1/58) and in the notes of the Emergency Department of Nepean District Hospital, which stated that he was a “Passenger on a motorbike” (Blue 1/9). The primary judge correctly found that this information could only have been provided by Elton as Carian was unconscious at all material times.

140 The contemporary evidence, therefore, is that at the time he was asked by Mr Cooper “Who was riding the bike?”, he understood that question as seeking to ascertain those who were on the motorbike, without differentiating between who was the driver and who was the pillion passenger.

141 It is true that the primary judge did not refer in his judgment to the evidence which I have recorded in [132] above. However, if he had, there was no reason why he should have concluded from that evidence that when answering Mr Cooper’s question, Elton intended to convey to him that he was the driver in control of the motorbike at the time of the accident. As pointed out by Santow JA at [73] of his judgment, that evidence was “equivocal at best”.

142 Furthermore, there are other factors which support the primary judge’s conclusion that Elton was the pillion passenger at the time of the accident. They are as follows:

(a) It was common ground, and the primary judge found, that Elton was the passenger when the motorbike left Jones’ property and commenced its journey on Gross Vale Road;

(b) Again, as his Honour found (at Red 70G-J) that it was Carian who instigated the ride, and not Elton. Unlike Carian, Elton had no experience riding a motorbike of the type in question;

(c) The accident occurred at a distance of approximately 3-4 kilometres from Jones’ property. As I have observed, Carian was the one who insisted that the motorbike be ridden whereas Elton was less than enthusiastic: see Black 1/193H-N.

(d) The primary judge accepted (at Red 70J-L) that there was no basis for rejecting Elton’s evidence that he recollected everything, including being the pillion passenger, up to 200 metres from the point of impact after which he had no further memory;

(e) Accordingly, on the acceptance of that evidence, any changeover of driver would have occurred within the last 200 metres, a highly unlikely scenario;

(f) As Elton’s counsel submitted, to suggest that Carian’s lust for riding the motorbike would have been satiated within three to four kilometres of Jones’ property and within a comparatively short timeframe would defy common human experience;

(g) Furthermore, the unchallenged evidence of Mr Cooper (at Black 1/119S-T) was that he heard the motorbike coming up the hill and around a sweeping left hand bend (which would have covered far more than 200 metres) and that he heard no noise of braking. Rather, Mr Cooper heard a continuous audible sound, which would clearly indicate that the motorbike had not pulled up (even with the engine running) to enable a change of driver;

143 It follows from the foregoing that in my opinion, not only did the primary judge find facts which would, on their own, entitle him to infer that Elton was the pillion passenger at the time of the collision, but there were also additional factors which supported his Honour’s conclusion. Accordingly, I perceive no error justifying this Court’s intervention in his Honour’s refusal to accept that when Elton was speaking to Mr Cooper and agreed that he was riding the motorbike, he intended, in the particular circumstances in which that conversation took place, to convey that he was the driver in control of the motorbike at the time of the accident.

144 Although it is true that there were a number of factual issues upon which the primary judge was unable to make a finding one way or the other, there was more than an adequate number of facts which his Honour did find that were capable of supporting his conclusion that Carian was in control of the motorbike at the time of the accident and that Elton was the pillion passenger.

145 I turn now to the expert evidence, which I can deal with briefly. A considerable amount of expert evidence was adduced during the third hearing of the proceedings at trial. Evidence was given by three experts, being Mr Griffiths and Mr Jamieson for the appellants, and Mr Moir for the respondent. The primary judge considered (at Red 72E-F) that none of this evidence was capable of conclusively determining the outcome of the case and, therefore, declined to draw any conclusions from it. However, he did indicate (at Red 72D) that if he had to choose the opinion of one expert, he would have accepted that of Mr Moir, whose evidence supported the respondent’s case that at the time of the accident he was the pillion passenger.

146 The appellants submitted that it was not possible to determine what weight, if any, the primary judge placed on the expert evidence. They contended that his Honour’s approach was erroneous because his acceptance of the expert evidence should have been determined on the balance of probabilities, rather than by examining whether the evidence was capable of conclusively determining the outcome of the case.

147 The appellants further submitted that the primary judge should have accepted the evidence of Mr Jamieson and Mr Griffiths, rather than that of Mr Moir. In their supplementary submissions, the appellants point out that Mr Griffiths had bio-medical experience and expertise, and that Mr Moir did not; and that both Mr Griffiths and Mr Jamieson had extensive experience in traffic matters. By contrast, Mr Moir was a civil and structural engineer with a background investigating motor vehicle accidents.

148 It is true that a judge may consider expert evidence to be persuasive whether or not it is conclusive. However, there is no principle requiring a judge to exhaustively recount all such evidence, or even to make findings about it, when the expert evidence does not assist him or her in the determination of the issues. In this case, I believe that his Honour made a fair assessment of the weight that should be given to the expert evidence. Each of the expert witnesses’ accounts relied upon a number of factual assumptions and, as the primary judge observed, “these three experts – who I am sure are well qualified – have no more evidence than I have” (Red 71E). In other words, the assumptions were not proved. His Honour also noted that all the experts accepted that they had some difficulty reaching conclusions about what actually happened.

149 In my opinion, all the expert evidence was of limited usefulness in this case, and I agree with the primary judge that it was not determinative. The expert evidence relied upon by the appellants seems to amount to an argument that in the case of a motorcycle accident the person in control of the bike is likely to land in closer proximity to the bike than a pillion passenger. It is clear from the evidence relied on by the appellants that this is not a hard and fast rule and those experts properly conceded that it would not apply in all situations. The mere possibility that the positions at which Carian and Elton came to rest on the roadway might indicate that Elton was in control of the motorbike was not enough to displace the other evidence to which I have referred above and upon which the primary judge relied in concluding that Carian was in control of the motorbike at the time of the accident.

150 Finally, I would agree that it was also open to the primary judge to find that Mr Moir’s evidence was more compelling than that given by the other experts. His Honour considered that it was “significant that Mr Griffith and Mr Jamieson do not agree on all matters” (Red 71T). His Honour also felt that the evidence offered by Mr Jamieson relied on assumptions about the riding skill of a 15 year-old boy that were not credible; and he noted that Mr Griffith’s evidence relied upon the observations of witnesses about post-crash rest positions which were not capable of supporting a firm conclusion one way or the other. There were too many variable and unknown factors at play. By contrast, his Honour noted that Mr Moir’s evidence had “a lot of logic in it” (Red 71O). This “logic”, in all likelihood, stemmed from the fact that Mr Moir’s account was consistent with the other factual findings made by the primary judge on the basis of the non-expert evidence.

151 It is thus clear that a different approach to the expert evidence would not have influenced the decision of the primary judge. At the end of the day, his Honour attached little, if any, weight to that evidence. In the circumstances it was, in my opinion, clearly open to him to take that course.

152 In the foregoing circumstances, with no error being demonstrated on the part of the primary judge which would justify appellate intervention, I agree with Santow JA that the appeals should be dismissed with costs.

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Citations

Carian v Elton [2006] NSWCA 168

Cases Citing This Decision

0

Cases Cited

11

Statutory Material Cited

0

Luxton v Vines [1952] HCA 19

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

CITATION:	Carian and Others v Elton [2006] NSWCA 168
HEARING DATE(S):	5 April 2006
JUDGMENT DATE:	29 June 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Tobias JA at 124
DECISION:	Appeals in 40265/05, 40267/05 and 40268/05 are dismissed with costs.
CATCHWORDS:	NEGLIGENCE – motorcycle accident – dispute as to driver – permissible inferences as to likely driver – presumption of continuance – numerical probability distinguished from balance of probabilities standard. - EVIDENCE – rejection of expert evidence based on factual assumptions made. - EVIDENCE – evaluation of contested evidence of admissions – “rider” with respect to motorcycle carrying two persons – “riding” with respect to motorcycle carrying two persons. - Luxton v Vines (1952) 85 CLR 352 distinguished. - Carian v Elton (2000) 31 MVR 421, considered. - Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, considered.
CASES CITED:	Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Carian v Elton (2000) 31 MVR 421 Fox v Percy (2003) 214 CLR 118 Luxton v Vines (1952) 85 CLR 352 Maher-Smith v Gaw [1969] VR 371 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Nesterczuk v Mortimore (1965) 115 CLR 140 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Van Eeden v Henry (2005) 42 MVR 375
PARTIES:	Clinton James CARIAN (Appellant CA 40265/05) Debbie SALISBURY (Appellant CA 40267/05) Christopher CARIAN (Appellant CA 40268/05) Ivan JONES (Appellant CA 40423/05) Scott Peter ELTON (Respondent in all above matters)
FILE NUMBER(S):	CA 40265/05; 40267/05; 40268/05; 40423/05
COUNSEL:	CA 40265/05; CA 40267/05; CA 40268/05: D T KENNEDY, SC/ A PORTHOUSE (Appellants) D J RUSSELL, SC/ O ASSABGY (Respondent) CA 40423/05: M A CLEARY (Appellant) P S JONES (Respondent)
SOLICITORS:	CA 40265/05; CA 40267/05; CA 40268/05: Herbert Weller (Appellants) Ray Wehbe & Co (Respondent) CA 40423/05: Turner Whelan (Appellant) Matthews Dooley & Gibson (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC8229/97; DC6588/98; DC6589/98; DC8368/97
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	10 December 2004