Collins v Tabart
[2007] NSWCA 78
•4 April 2007
Appeal Outcome: Special leave application granted by the High Court - 6 December 2007
New South Wales
Court of Appeal
CITATION: Collins v Tabart [2007] NSWCA 78
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 20 March 2007
JUDGMENT DATE:
4 April 2007JUDGMENT OF: Mason P at 1; Beazley JA at 1; Tobias JA at 1 DECISION: Appeal dismissed with costs. CATCHWORDS: Appeal – interference with judge’s findings of fact – findings based on credibility of witnesses – whether trial judge erred in resolving conflicts in evidence - Appeal – inconsistency of plaintiff’s evidence with objectively established facts LEGISLATION CITED: Supreme Court Act 1970 (NSW) s 45(4) CASES CITED: Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57PARTIES: Peter Charles Collins (Appellant)
John Kimberley Tabart (Respondent)FILE NUMBER(S): CA 40463/06 COUNSEL: BM Toomey QC; G Farmer (Appellant)
SG Campbell SC (Respondent)SOLICITORS: Walker Smith Solicitors (Taree)
TL Lawyers (Newcastle)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 26/2004 LOWER COURT JUDICIAL OFFICER: Gibb DCJ LOWER COURT DATE OF DECISION: 21 June 2006
CA 40463/06
4 April 2007MASON P
BEAZLEY JA
TOBIAS JA
Short Reasons for Decision
1 THE COURT: The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to s 45(4) of the Supreme Court Act 1970 (NSW), the Court’s reasons in short form are as follows.
2 The appellant bears the formidable task of overturning credibility-based findings which in turn led the trial judge to conclude that she was not persuaded to accept that the respondent was negligent or that any negligence on the respondent’s part had caused the accident.
3 The findings were further supported by unchallenged expert evidence that in turn drew upon data collected by police from the unit who attended the scene shortly after the accident. The expert evidence and police data that was translated into a plan (Exh 14) was capable of supporting the respondent’s case and corroborating a key witness, Ms Ferguson. Indeed, we consider it showed that the probabilities favoured the respondent, as her Honour concluded.
4 The appellant faced a further difficulty in that he gave inconsistent versions of how the accident happened. Even more difficult for the appellant is the fact that none of those versions, when compared to such objective evidence as there was, represented the likelihood of the accident happening as he said.
5 The appellant sought to challenge the trial judge’s reasons on the basis that there was an error in the process of fact finding: see Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57 per Hayne J at [129].
6 The respondent contended that the case was governed by the principles of Devries v Australian National Railways Commission (1993) 177 CLR 472 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. The principles in those cases are well known and do not require elaboration. It is sufficient to cite the passage in Devries per Brennan, Gaudron and McHugh JJ at 479:
- “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’”.
7 In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ at [31] emphasised the importance of “contemporary materials, objectively established facts and the apparent logic of events”.
8 In our opinion, there was no error in the fact finding process as alleged. The judge’s reasoning is extremely detailed. It wrestles with the conflicts in the testimony of the various witnesses. The appellant has challenged aspects of the detailed findings, but not in any way that is determinative, in our opinion.
9 In addition to conflicts in the testimony of the various witnesses, there were credit issues raised in the evidence of the appellant, the respondent and the passenger in the respondent’s vehicle, Mr Croan. For the reasons explained below, those credit issues are substantially resolved by the contemporaneous evidence of objective matters such as skid marks and the identification of the point of impact.
10 The appellant was seriously injured on 2 July 2002 whilst driving his truck north on the F3 Freeway. Approximately 3 km north of the Ourimbah roundabout he collided with the respondent’s vehicle and then veered out of control. The appellant then veered back to the left and crashed through the Armco barrier. The appellant also caused another vehicle driven by a Ms Ferguson, in lane 2, to veer across lane 3 and off the roadway into safety cables on the right hand side of the Freeway. It is likely that the appellant’s vehicle also struck Ms Ferguson’s vehicle.
11 The Freeway had three lanes in each direction with, relevantly, a breakdown lane on the left-hand side of the road in the direction in which the appellant was travelling. The speed limit on the Freeway was 110 km per hour. The appellant’s evidence was that he was travelling in lane 1 or the left-hand lane at about 85 km per hour immediately prior to observing the presence of the respondent’s motor vehicle.
12 The essential issue in the case was whether before the collision the respondent’s vehicle had stopped within the breakdown lane or whether it suddenly veered across the appellant’s path.
13 The appellant’s case was that he first saw the respondent’s vehicle when he saw its brake lights 2 to 3 metres in front of him. He said that when he first saw the respondent’s vehicle, it was moving at a slow speed from lane 2, that is the middle lane, across into lane 1. He said the respondent’s vehicle was travelling at an angle, by which the Court understands him to mean an angle necessary to change from lane 2 to lane 1. The appellant said that he must have hit his brakes because he felt the trailer locking up and that there was a loud thud. He did not know what the thud was, but said, “[s]o I take it that it was him”, meaning the defendant.
14 The respondent’s case was that he had stopped in the breakdown lane so as to make a telephone call on his mobile phone to a real estate agent, the purpose of his trip being to inspect property at Budgewoi. His evidence was that he was on that call when the collision occurred. This was not in dispute and the records produced by Telstra established that the telephone call had been in progress for 65 seconds at the time that the accident happened. The respondent’s case was that he had been stopped for about a minute before he commenced to make the call, so that, in all, he was in the breakdown lane for about two minutes before the accident occurred.
15 The appellant’s contention, as developed on the appeal, was that the respondent must have been speaking on his mobile phone whilst his vehicle was still moving from lane 2 into lane 1. In order to make this contention good, the appellant sought to demonstrate that, contrary to her Honour’s findings, the evidence of the respondent and his passenger Mr Croan could not be accepted in material respects. The appellant also submitted that the trial judge failed to give adequate weight to the evidence of other drivers who either witnessed the accident or were in the vicinity when the accident happened and who said that they did not see the respondent’s vehicle parked in the breakdown lane. Each of these matters may be dealt with briefly.
The telephone call
16 As already indicated, there was no dispute that the respondent was making a telephone call on his mobile phone when the accident occurred. He maintained that he had not made any other calls whilst driving and did not commence making the subject call until he had come to a complete stop and had been stationary for about one minute.
17 However, there was evidence that at 1:35:50pm a telephone call had been made to the respondent’s telephone which was of 34 seconds duration and which had been diverted to the 101 message bank. At 1:36:30pm, a four second call had been made on the respondent’s mobile phone to 101. The telephone call made by the respondent to the real estate agent was at 1:38:40pm. The respondent’s evidence was that the mobile phone was in his pocket. The appellant contends that the respondent must have made the call to 101 and that his denial of having done so must, at the least, have been mistaken.
18 It is indisputable that the call to 101 was made. Having regard to the appellant’s evidence that the respondent had the phone in his possession, and there being no suggestion in the case that his passenger made the call, the only finding that could have been made on the evidence was that the respondent must have made the call to 101. The short (four second) duration of the call provides some basis for the respondent having no recollection of having made it. The person called is unknown. But whatever the reason for the appellant’s denial, her Honour’s finding to the contrary is an error. However, at its highest it is an error going to the respondent’s credit. It does not establish that the respondent was making the telephone call to the real estate agent immediately before the accident when he was (according to the appellant) cutting across the appellant’s path.
The position of the respondent’s vehicle in the breakdown lane
19 The respondent gave evidence that when he brought his vehicle to a stop in the breakdown lane he was approximately 30 centimetres from the Armco barrier. The breakdown lane was 3.2 metres wide. Its separation from lane 1 was delineated by an unbroken white fog line. The respondent’s vehicle was 1.695 metres wide. A gouge mark in the bitumen was identified as indicating the point of collision. The gouge mark was located 2.9 metres from the Armco barrier and was identified as having been caused by the driver’s side rear wheel of the respondent’s vehicle being forced into the bitumen by the force of the appellant’s vehicle overriding the rear driver’s side of the vehicle. There were other gouge and scrape marks also indicating, or confirming, that the accident occurred wholly inside the breakdown lane and that the respondent’s car was stationary about 0.3 metres from the fog line.
20 The appellant’s contention was that the respondent was, therefore, wrong when he said he had parked his vehicle approximately 30cm from the Armco barrier. It followed on this submission that the respondent’s evidence should not be believed at all so that the Court should not accept his evidence that he was stationary in the breakdown lane and had been for at least two minutes before the accident occurred.
21 Again, it is indisputable that the respondent’s vehicle could not have been in the position in the breakdown lane that the respondent says. However, that does not establish that the vehicle was not thereby stationary in and wholly within that lane when the accident occurred. In this regard, the real contest between the parties is whether the vehicle was in the breakdown lane at all. As indicated above, the appellant’s case was that the respondent was in lane 1 when the accident occurred. However, as was apparent from her Honour’s analysis of the observations and measurements taken by the police officers who attended at the scene of the accident there can be no doubt that the respondent’s vehicle was wholly within the breakdown lane when the accident occurred.
22 The location of the gouge marks within the breakdown lane and their location parallel to the fogline indicates the improbability of the appellant’s version of the accident, a matter noted by the expert.
Challenge to evidence of Mr Croan
23 The next challenge to her Honour’s findings of fact related to the evidence of Mr Croan, the passenger in the respondent’s vehicle. This challenge related to whether Mr Croan was asleep or not, either when the accident happened or just immediately prior to that, or whether he was awake. Mr Croan had told the police officer some hours after the accident that he had been asleep. However, in his evidence he said that he was awake when the car pulled off the expressway into the breakdown lane and that the respondent had said to him that he would pull over and ring the agent. He denied that he was asleep.
24 The trial judge found that Mr Croan’s denial of his conversation with the police officer was wrong but did not find that the denial was dishonestly made. Her Honour accepted Mr Croan’s evidence that he was awake when the respondent’s vehicle pulled up in the breakdown lane. The appellant contends that this finding was an error by the trial judge. This is not correct. The trial judge had before her two versions given by Mr Croan of whether he was awake at the moment of impact. This provided fertile ground for an attack on credit. However, her Honour accepted Mr Croan’s sworn evidence over his statement to the police. She was entitled to do so and her finding was not demonstrated to be patently wrong.
Challenge to findings of evidence of witnesses
25 The next challenge made by the appellant to her Honour’s finding was that there were six persons who gave evidence that they did not see the respondent’s vehicle in the breakdown lane but that her Honour dismissed their evidence as being no more then an absence of evidence that the vehicle was in the breakdown lane. Her Honour analysed the evidence of each of these witnesses carefully. No error has been demonstrated in her Honour’s analysis. In any event, none of those witnesses, including Ms Ferguson, said they saw the respondent’s vehicle in lanes 1 or 2.
26 Accordingly, none of the specific challenges to her Honour’s findings have been made out.
The technical and expert evidence
27 More significantly, however, is her Honour’s analysis of the evidence of the police officers who observed and measured skid marks and gouge marks on the roadway and her analysis of the expert evidence which, in large measure, her Honour accepted. Her Honour’s analysis of this material is to be found at p 27ff of her judgment. In particular, her Honour accepted that the gouge marks on the roadway and the damage to the respondent’s vehicle was such that the respondent’s vehicle:
- “… was most likely positioned facing north parallel to the white line separating lane 1 and the breakdown lane at the time of impact. The [respondent’s vehicle] was also most likely positioned and entirely within the breakdown lane at the moment of impact.”
28 Once the evidence of the gouge marks was accepted as representing the point of impact, the appellant’s version of events given in his evidence became improbable.
29 It is necessary at this point to return to the events involving Ms Ferguson. Her Honour found Ms Ferguson’s evidence was that:
“She moved right into lane 2 to overtake [the appellant].
[The appellant] drifted into lane 2, and [Ms Ferguson] reacted by moving into lane 3 to avoid [the appellant].
[The appellant] then moved to the left.
[The appellant] then swung back to the left and ploughed off the road through the Armco railing.”The left side of the cabin of [the appellant’s vehicle] rose up and [the appellant’s vehicle] rode to the right again, and [Ms Ferguson’s] vehicle was pushed further to the right, being pushed into the median strip cable fence on the right side of the carriageway.
30 The appellant contended that these findings were also erroneous and they were not a correct summation of Ms Ferguson’s evidence. In particular, it was submitted that at no stage did Ms Ferguson say that the appellant had drifted into lane 2, then veered back to the left and then back to the right forcing her into the safety cables.
31 The respondent contended that not only did her Honour correctly summarise Ms Ferguson’s evidence, there was evidence of skid marks on the roadway that indicated that prior to the collision with the respondent’s vehicle, the appellant had drifted into lane 2, and then swung left and right again finally forcing Ms Ferguson into the safety cables on the right hand side of the road.
32 Ms Ferguson gave the following evidence:
“A. As I was – moved into lane 2, I noticed that the truck swerved quite heavily into my lane. At that stage I went to go for lane 3 to avoid the truck. I remember being pushed from the left-hand side into the safety cables.
…
A. Sort of – when he swerved it was like he’d come halfway into lane 2.
…
A. … then the truck seemed to go up into the air. By then it felt like I’d also been hit, and I was pushed to the safety cables at the same time. The truck had come up into the air, and it was sort of going up and down.
A. … there was a loud bang; there was like a push and I basically lost control and ended up in the safety cables.HER HONOUR: Q. See-sawing?
A. Yes, a seesawing effect. Then all of a sudden it went up and down over an embankment.
…
33 In cross-examination, she said:
- “A. … it was a hard swerve, like you were going to miss something, and then that’s when I noticed the front left-hand side of the truck came up into the air. What I mean by ‘seesawing’, like, the whole trailer seemed to do it, and then the cab just went up in the air and down over the embankment.”
34 Ms Ferguson said that at the point where her vehicle stopped, the respondent’s vehicle was about 20 metres further back down the road in the breakdown lane. She did not witness the accident between the appellant’s and respondent’s vehicle.
35 A police officer, Senior Constable Hamilton, from the Metropolitan Crash Investigation Unit who attended the scene of the accident, made observations and took measurements at the scene of the accident. Relevantly, he observed three series of skid marks on the road, in addition to the gouge marks in the breakdown lane.
36 The first series of skid marks were south of the point of collision and comprised skid marks of two vehicles. There were skid marks of one vehicle that were partly in lane 1 and partly in lane 2 (that is, there were marks of one tyre in lane 1 and marks of the other tyre in lane 2). These skid marks stopped 18 metres before the point of collision. (We will refer to these as the left hand skid marks.) A distance of 18 metres would have been travelled in about 1 second by a vehicle doing 85 km per hour. There were skid marks of a second vehicle in lane 2 (the right hand skid marks) which commenced slightly south of the left hand skid marks and stopped before those skid marks stopped. The right hand skid marks were lighter than the left hand skid marks.
37 The second series of skid marks were of one vehicle and commenced in lane 3 approximately opposite the point of collision and proceeded into the safety cables and back towards lane 3. Those skid marks were clearly the marks of Ms Ferguson’s vehicle.
38 The third series of skid marks commenced to the north of the point of impact in lane 1 and ran northwards and then at an angle into the Armco barrier. Those skid marks were obviously made by the appellant’s vehicle up to the point where it crashed through the Armco barrier.
39 The respondent contended that the first series of skid marks supported her Honour’s assessment of Ms Ferguson’s evidence that the appellant had first veered suddenly to the right, into lane 2, then corrected, and it would seem, over-corrected, resulting in his vehicle going partly into the breakdown lane and colliding with the respondent’s vehicle.
40 This argument was vigorously resisted by senior counsel for the appellant, who submitted that the left hand skid marks in the first series of skid marks could not have been made by the appellant as all tyres on the truck, except the front tyres, were double sets of tyres and the skid marks were single tyre skid marks only.
41 Senior counsel for the appellant also pointed out that Senior Constable Hamilton was not able to source the skid marks. Initially, the cross-examination on this point was whether he considered “he had sufficient expertise to interpret the source of the cause of those marks having been applied to the road”. Senior Constable Hamilton said: “[n]ot to give an opinion on the source or the cause, no”.
42 Later in the cross-examination, senior counsel for the appellant sought Senior Constable Hamilton’s agreement that the left hand skid marks appeared more likely to have been made by a sedan than a truck. However, Senior Constable Hamilton disagreed with this proposition. He did agree eventually, however, that he could not say what vehicle caused those skid marks.
43 In a further written submission, the appellant submitted that the photographic evidence confirmed that these left hand skid marks were different from the third series of skid marks which it is accepted were made by the appellant’s vehicle following the collision with the respondent’s vehicle. It says that those skid marks reveal the rear wheels of the appellant’s vehicle and that in particular, photograph 34 shows the impression of dual tyres crossing over the fog line.
44 The Court is not convinced that the photographs have the clarity or the evidentiary weight that the appellant seeks to attribute to them. Photograph 34 appears to show a split in the skid mark as it passes over the fog line. However, the photograph does not necessarily depict the skid marks of dual wheels. It could indicate that the middle portion of a single tyre failed to grip the fog line.
45 As is well known, photographic evidence can provide a quite misleading perspective of distances, angles and widths and, whilst helpful so far as they go, provide limited assistance on matters where the detail of such things is relevant. In such a case, independent evidence may be necessary before any specific finding can be made.
46 There was no independent evidence as to whether any part of the third series of skid marks were made by dual tyres. In particular, Senior Constable Hamilton did not state in his report or his evidence that the third series of skid marks were dual tyre skid marks. The language of his report is the same when reporting the first series and the third series of marks. He was not specifically examined or cross-examined as to whether any of the skid marks were made by dual tyres.
47 Nor was there any evidence as to the braking systems of vehicles with dual tyres on all but the front wheels and as to whether such a vehicle might lay down single skid marks only.
48 A careful examination of some of the photographs permits of the possibility that there may be dual tyre skid marks along some of the path of the third series. Likewise, portions of the skid marks appear to be single tyre skid marks and indeed clearly appear to be so. Assuming that this interpretation of the photographs is correct it diminishes, and probably destroys, the otherwise logical submission made by senior counsel for the appellant on this point.
49 Having regard to the probability that some at least of the third series of skid marks were single tyre skid marks, and the location of the gouge marks made by the respondent’s vehicle as a result of the collision in the breakdown lane, the inference was clearly open to her Honour, that the appellant, having drifted into lane 2 almost causing a collision, over-corrected, and collided with the respondent’s vehicle. The premise underlying that inference is that the right hand skid marks in the first series of skid marks were made by Ms Ferguson’s vehicle. That, in our view, is most likely to be correct.
50 But in any event, the different versions of the accident advanced by the appellant are not only inconsistent, but none of them are capable of explaining the accident which in fact happened. For example, in his record of interview to the police given on 2 July 2002, the appellant said that having checked his rear-vision mirrors and then having turned around to look ahead, he saw that a car was in front of him. He said:
- “… I was running up on him pretty quick because the traffic was moving fairly fastly [sic] and I thought I got to go around this bloke and I realised he couldn’t go out on the right side of me because there was traffic everywhere, so I slipped in on the left hand side of him in the break down lane and at that point he came across and caught the truck and there was a hell of a racket and the truck give a rock and a shake and I don’t remember much more …”
51 The difficulty with this version is that it is inconsistent with the damage to the respondent's vehicle. On this version, the appellant would have continued to run over the top of the vehicle from the driver's rear side to the passenger’s front side and, most likely would have done so on the driver's side of his own vehicle. However, the damage to the respondent’s vehicle was across the driver's rear side. The damage did not continue across to the passenger’s front side.
52 In the proceedings in the Local Court in October 2003, the appellant said that the vehicle in front of him with its brake lights on “was heading straight” in lane 1. However, there are two problems with this version. First, the appellant in his evidence in the Court below said that the vehicle was changing lanes from lane 2 to lane 1 at an angle when he first saw it. Secondly, it was incontrovertibly established that the accident occurred when the respondent’s vehicle was wholly within the breakdown lane. The vehicle could not have moved from lane 1 to the breakdown lane in the short period of time between the appellant having seen the vehicle 2 to 3 metres ahead, and the collision occurring.
53 Finally, and as already indicated in the previous paragraph, the appellant's evidence before the trial judge was that the respondent’s vehicle was moving from lane 2 to lane 1 at an angle and was only metres ahead of him when he saw the stop lights. On that version, also, the respondent’s vehicle could not have been in the breakdown lane at the point of collision, notwithstanding the incontrovertible evidence to the contrary.
54 Accordingly, although there were aspects of her Honour’s reasons that possibly raised appellable issues, her conclusion was, for the reasons we have given, correct. The success of the appellant’s case depended upon his establishing that the respondent’s vehicle moved unexpectedly in front of him. However, in our opinion, the evidence of the gouge marks incontrovertibly established the contrary – namely, that at the point of collision, the respondent’s vehicle was already in the breakdown lane. It could not have got to that position on any of the versions of the accident advanced by the appellant.
The Court
………………… …………………… …………………Mason P Beazley JA Tobias JA
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