Conroy v Government Insurance Office of New South Wales

[1992] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S152 of 1991

B e t w e e n -

WAYNE CONROY

Applicant

and

GOVERNMENT INSURANCE OFFICE OF

NEW SOUTH WALES

Respondent

Application for special leave

to appeal

.MASON CJ	.BRENNAN J
MCHUGH J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON .MONDAY, 3 AUGUST 1992, AT 9.34 AM
Copyright in the High Court of Australia
Conroy 1 3/8/92
MR O.F. JACKSON, QC:	May it please the Court, I appear with

my learned friend, MR D.E. ANDREWS, for the

applicant. (instructed by Baker Ryrie Rickards
Titmarsh)

MR o.F. ROFE, QC: If Your Honours please, I appear with my learned friend, MR R.C. TONNER, for the respondent.

(instructed by Mrs M. Harakos, Solicitor for the

Government Insurance Office, (Parramatta Region))

MASON CJ:	Mr Jackson.
MR JACKSON:	Your Honours, the ground of this application is

the interests of the administration of justice in a

particular case and the particular matter to which

those submissions will be directed is the manner in

which the trial judge dealt with the evidence of

the location of blood stains in the vehicle after

the accident and, of course, the manner in which
the Court of Appeal dealt with the appeal from the

judge on that issue. Your Honours, the consequence

of success in the application and a subsequent

appeal would be a new trial.

Your Honours, may I go for just a moment to a few aspects of the base facts which are important

to the submission which I wish to make. The
critical issue in the case was whether the

applicant was the driver of the utility at the time

when it overturned and rolled over several times.

The judge recognized - I should say, the Master

sitting at first instance recognized that that was

the issue. That appears at page 13 lines 10 to 12.

He referred to it as being the "sole issue".

The applicant's case was that he was a

passenger with a Mr Le Guier driving, and that was
Le Guier's evidence also. There·were however two

features which militated against the view that the applicant was a passenger, as he said, and not the driver. The first was that the driver's side door

of the utility was damaged but the passenger's side door was not damaged, or perhaps not in any way	seriously damaged. The second feature was that the
applicant's injury was to his right rather than to
his left arm; to the inner part of his arm. I
should. say however that it was found by the Master
that the injury could have been sustained by the applicant though sitting in the passenger seat.
Your Honours will see that at page 15 line 32
through to page 16 line 2.

Now, Your Honours, one possible area of

contact, for example, was the base of the broken

windscreen. At this point may I hand Your Honours

some pages from a transcript; I am sorry they are

not in better form, but it was not appreciated they ,r-~

(

Conroy 2 3/8/92

might be necessary until quite recently.

Your Honours, I do not intend for a moment to refer

to all those pages; they are there in case the

parts of the evidence to which I wish to refer are

thought in any way to take a shade from the

evidence around them. Your Honours, at page 250 -

I am using the figures at the bottom of the page in each case, the bottom right corner - those being

pages from the record in the Court of Appeal.

Your Honours will see, in the passage commencing at

about line E going through to line o, there is a

reference in the cross-examination of Mr Griffiths,

who was an expert on accidents, to the possibility

of injury being caused by there being contact

between the arm as the vehicle decelerated, and the

bottom of the windscreen, the windscreen having

been taken out in the rolling over.

Your Honours, an obviously important matter in

the case was the location of blood stains in the

vehicle, because no person other than the applicant

was injured in the accident. Your Honours, that

"no person other than the applicant was injured in

the accident", is a finding made at page 4 lines 15

to 16.

Now, Your Honours, so far as evidence

concerning blood stains was concerned, the first
evidence on the topic was given by a

Constable Gordon who had seen the car in the day

after the accident·. He saw the blood in two

places: first, a small amount on the driver's side
pillar and secondly, an amount on the seat between

the left-hand passenger and the place where the

middle passenger would sit in the front of the

utility. That evidence Your Honours will see at

page 158L too. He was asked to look at various
photographs and agreed that there were marked

·consistent with blood on the inside and outside of the passenger door. Now, Your Honours, could I go

to page 169 commencing at letter Bin a passage

which goes through to page 170D, and also

Your Honours, at page 170R to u.

Now, Your Honours, two other witnesses,

Messrs Dickson and Cook, had seen the blood stains;

they had seen the utility two days after the

accident. May I take Your Honours to the evidence

of Mr Dickson at page 202 commencing at letter Nin

a passage which goes through to page 203D, and

Your Honours will see if I could refer particularly

to page 202 Oto Q, that he had seen the blood:

On the passenger's door-trimming side, a bit

on the dash, on the outside of the vehicle on

the passenger door.

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Your Honours, at page 205, in cross-examination, letters P to Q, he refers:

there had been blood splashed around inside

the cabin of the car.

Or that he had referred to it and, Your Honours,

there was cross-examination to seek to elicit from

him that what he had seen may have been oil, but

the answers did not seem to go so far.

Your Honours, could I refer, simply for

completeness, to page 206F to Q; page 208M to O;

page 208V to page 209H, that is the remainder of

the cross-examination on the point, and in

re-examination, Your Honours, at page 212L too,

where he saw the blood on the inside of the
passenger door.

Now, Your Honours, the evidence of Mr Cook -

and I should say Mr Cook was the brother-in-law of
the applicant - was quite short on the point. It

appears at page 214 O through to 215G, and

Your Honours will see that he saw blood:

on the outside of the -

passenger -

door.

And he had also seen blood on the inside and,

Your Honours, there was no cross-examination which

affected that in any way.

MASON CJ:  Mr Jackson, why is it that if your application

and an appeal were to succeed you would have a new

trial, as distinct from a judgment for the

plaintiff?

MR JACKSON:  Your Honour, because the point we are seeking

to make is that whilst it was open on the evidence,

as we would accept, for the judge in the end to

have found against the applicant, because there was

evidence which might have gone either way, at the

same time our contention is that he did not

properly take into account the effect of the blood

in arriving at the conclusion which he did against

us. So that, Your Honours, the point we would seek

to make really is that if the judge had applied

himself, as we would submit with respect to the

task, he ought to have taken into account the

presence of the blood and its possible significance

in those places, particularly in the evidence I

will come to, the last passage, in just a moment,

Your Honours, which was that there was a stream of

blood, in effect, on either side of the passenger

door, inside and outside, but the way in which the

Conroy 4 3/8/92

judge in fact dealt with it was really just to

dismiss the evidence as playing no part in his

conclusions. So, Your Honours, one cannot say we

would necessarily have succeeded, but we ought to

have been heard on the point as it were.

BRENNAN J:	Was there any evidence as to the movements of the plaintiff from the time of the accident until
somebody came along to take him off to hospital?
MR JACKSON:	No, Your Honour; the answer is no, and that

indeed is, in a sense, a matter of "complaint" by

us about the way in which the matter was dealt with by the Court of Appeal, because the Court of Appeal

really seemed to engage, with respect, in a degree

of speculation about what might have happened with

a view to explaining, or perhaps I might say,

explaining away the manner in which the case was

dealt with by the primary judge. I mean, for

example, Their Honours said the evidence did not

really disclose whether the utility ended up on its

roof or on its wheels but, Your Honour, if one had

looked at the evidence concerning the blood and

taken.it into account, it would seem fairly

unlikely, one might think, that if there was the

remains of a flow of blood on either side down well

on the passenger side door, but the vehicle had

ended up on its top and the significance of it

ending up on its top might well be thought to be,

if one were looking at it from that point of view,

that perhaps that might indicate that blood would

be smeared or something as someone tried to get out

the passenger side door, wherever they had been in

the first place.

Your Honours, may I come to that last passage

I was going to refer to. It is in the evidence of

Mr Griffiths who was the expert called by the other

side in relation to accidents. It appears,

Your Honours, at page 244, and Your Honours will

see at letters Oto R, where he appeared to accept

the proposition that there appeared to be:

similar blood type of marks again flowing in a

downward direction on the trim.

And Your Honours will see - I should have gone a

little further up the page - commencing at about

letter G, Your Honours, where he speaks about the

situation on the outside and the inside of the

door. The passage goes through to about page 244R

and the cross-examination on the point is at

page 253F to Q.

BRENNAN J:  Mr Jackson, there is an injury to the right arm

around the elbow area, is that right?

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MR JACKSON:  Yes. Your Honour, it is more the inside.

BRENNAN J:	The inside?
MR JACKSON:	An injury brought about by, in effect, the skin

coming away.

BRENNAN J:  And the blood flows, obviously, from, one would

think, that injury.

MR JACKSON:  Yes.

BRENNAN J: And it flows downwards on the door, and that is

the door that was undamaged in the accident?

MR JACKSON:  Yes, Your Honour.

BRENNAN J: And, the other door -

MR JACKSON:  Your Honour, might I add one slight

qualification to that?

BRENNAN J: Yes.

MR JACKSON:  Looking at the photographs, it was said the

door appeared to be undamaged.

BRENNAN J: Yes.

MR JACKSON:  Now, the evidence had been given by

Constable Gordon that there was some damage to all

of the panels of the vehicle. Now, Your Honour, it

was open, no doubt, for the judge to take the view,

if he was otherwise properly directing himself,

that there was no damage to the door, but

Your Honour, that is the qualification I would add;

the qualification being that if he had given due

consideration to the position of the blood stains,

then he may have arrived at a different view on

that question too.

BRENNAN J:  I mean, one thought that crosses my mind is that

the most natural thing in the world, while they are

waiting for assistance, is that the injured man

should open the door that is undamaged, or

relatively undamaged, and sit there while he is

waiting.

MR JACKSON: Well, Your Honour, that is a possibility,

however, it depends where the injured person is

because if the injured man is the passenger and
sitting beside that door, then one does not have

the slightest degree of surprise at seeing that

happen. If, on the other hand, the injured man is

the driver and there is one, and perhaps two -

because there was an element of debate about that -

people beside him then, Your Honour, it is not

Conroy 6 3/8/92

quite such a natural result. And there was no

evidence that one could not get out the driver's

door.

BRENNAN J: But you are relying on this evidence to raise

the inference of his position, are you not?

MR JACKSON:  Yes, Your Honour. The point we are saying,

Your Honour, is that his version was that he was

the passenger, the person who said he was - - -

BRENNAN J: But his version was that he did not know.

MR JACKSON:  Your Honour, I am sorry; I think his version at

the trial was that he was the passenger. At an

earlier point he had told the police officer he did

not know, when he was in hospital. The other

witness said he was the driver. There was no one

who said that they were not the driver. And,

Your Honour, the point I am seeking to make about it is that the evidence of the location of the

blood stains was something that was very germane,

if I could put it that way, to the resolution of

that issue, particularly if one had a windscreen

that had gone, for example; an injury that one
might have thought would be consistent with a hand

going across the edge of the windscreen and blood,

indeed, in the general area, with blood on the

dash.

Now, Your Honours, could I come then to the

manner in which the issue was dealt with by the

Master. That appears at page 17 of the application book at about line 25, and Your Honours will see he

says:

However, during the first three days of the hearing, reference was made by several of the witnesses to blood stains.

Now, Your Honours, may I say just one thing about

that? That is, with respect, just not correct. The position is that the first evidence of blood	stains and, indeed, the only evidence during the
period to which the Master was referring, was the
evidence given by Constable Gordon, to which I
referred earlier, of there being a blood stain on the pillar of the driver's side door and also blood stains on the seat between the passenger seat on the left and the central seat. But the Master then
went on, on the top of the next page, to dismiss
the evidence of blood stains in the paragraph which appears at the top of the next page, really by
saying two things. The first was that the blood
stain on the outside of the vehicle remained
unexplained - and it is clear that he is speaking
about the passenger side door - and there was also

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evidence of some other stains. And, Your Honours,

that is all that the Master says about it.

Your Honours, we would submit that the blood

stains in the circumstance of the case, really

deserved more consideration than the two sentences

which appear at the end of that paragraph. The

blood, it was clear, came from the applicant and no

one else. There was blood on the inside of the

passenger door; there was blood on the dashboard; there was evidence of blood on the outside of the

passenger door and also between the left passenger

seat and the middle passenger seat, all of which·

was consistent with the injury, and the judge

simply fastened, as he then proceeded to do, on the

lack of damage to the passenger side door, in the

passage which commences at page 18 and starts at

line 10.

Now, Your Honours, when the matter was dealt

with in the Court of Appeal, the court dealt with

two submissions, on our side, I should say. The

first was that the evidence of blood stains

required the conclusion that the applicant had been

in the passenger seat - and Your Honour, that is

analogous to the issue Justice Brennan asked me

before, should there be a new trial or not, if we

were correct - but the court held, and we would not

disagree with it, that a conclusion pitched so high could not be sustained, and Your Honours, the court

dealt with that at.page 45 line 11 through to

page 46 line 13. Your Honours, I will refer

Your Honours to that passage because it is relied

on in relation to the second aspect of the case to

which I will come. May I direct Your Honours'

attention, in the course of doing so, to the bottom

of page 45 where, at line 25 - Your Honours, I am

sorry, I think I have given the wrong reference.

Your Honours, what I was going to say was that it

is said at some point in the Court of Appeal - yes,

I am sorry, Your Honours, it is lines 18 to 20 on

the same page. It said: 

A number of matters were not established in

the appellant's case.  One is whether the

utility was upside down or on its wheels when

it came to rest after the accident.

Now, Your Honours, that might be so as a matter of

an absolute conclusion from the evidence but that

is where the blood stains were a matter of some

importance because if the blood stains showed a

flow of blood down, it seems unlikely that the

utility would have ended up on its back.

Your Honours, the second submission which was made to the court was that which appears at page 46

Conroy 3/8/92

commencing at about line 14, namely that the

approach taken by the Master showed that he had

not, in his evaluation of the evidence, appreciated the potential significance of the evidence relating

to the blood stains. Your Honours, they were

material, for example, to his assessment of the

credit of the witnesses and they supported the
applicant's case. Your Honours, the view taken by

the Court of Appeal on this point, appears at

page 46 line 14 through to page 48 at about line 17

and, Your Honours, may we say a couple of things

about the observations of the court in that

passage? The first is that the Master, of course,

had not got correct the statement of what the

evidence had been during the first three days of

the hearing; the second thing was that the Master

did not ever refer specifically to the matter

referred to at the top of page 47. That is, the:

evidence was Constable Gordon's evidence of a

bloodstain on the driver's side pillar;

That was not a matter which played any specific

part in the Master's approach.

Your Honours, the strength of the case against the applicant depended on the view taken of the

blood stains. The Master's judgment, in our

submission, did not give due attention to them, and

the Court of Appeal's reasons for judgment are, in our submission, respectfully of course, an attempt

to explain away and in effect to justify the

approach taken by the Master and, Your Honours, we

would submit the case is one where a matter at the

core of the case has not been dealt with properly in the courts below. Your Honours, those are our

submissions.

'MASON CJ: The Court need not trouble you, Mr Rofe.

The critical or sole issue in this case was

whether the applicant was a passenger in, or the

driver of, the vehicle. That issue, which was one
of fact, was determined by the Master against the

applicant and that finding was upheld by the Court of Appeal. The applicant's contention is that the

interests of the administration of justice require

the grant of special leave because the Master

failed to take into account, or to give proper

weight to, evidence indicating the presence of

blood on the passenger side in the front of the

vehicle and on the front door on the passenger's

side. The Master dealt with this evidence very

briefly, but in the ultimate analysis, we are not

persuaded that there was any error on the part of

the Court of Appeal, when it said:

Conroy 9 3/8/92

The Master's principal reason for dealing

comparatively briefly with this matter seems

to me to have been that he thought that the

circumstances concerning the damage to the

driver's side and the comparative non-damage
to the passenger's side of the utility and the
nature of the injury to the appellant's arm,

decisively outweighed the validity of the

blood stain submission.

That view of the Master's decision is

supported by the following passage in the Master's

judgment:

For the foregoing reasons, I am not satisfied

that the plaintiff has established on the

balance of probabilities that he was a
passenger in the motor vehicle at the time of

the accident. That being so, it follows that

I am not satisfied on the balance of

probabilities that the injuries sustained by

him resulted from negligence of a person other

than the plaintiff driving the motor vehicle.

The consequence is that there must be a

verdict for the defendant.

In the result, notwithstanding that Mr Jackson has said everything that could possibly be said in

support of the applicant's case, the Court has come

to the conclusion that the application must be

dismissed.

MR ROFE:  I seek an order for costs.

MR JACKSON: There is nothing I can say.

MASON CJ: The application is dismissed with costs.

AT 10.05 AM THE MATTER WAS ADJOURNED SINE DIE

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