Fox v Percy

[2002] HCATrans 55

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S99 of 2001

B e t w e e n -

BARBARA FOX

Applicant

and

MEGAN L. PERCY

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 10.25 AM

Copyright in the High Court of Australia

MR P. MENZIES, QC:   If your Honours please, I appear with my learned friend, MR C.R. BURGE, for the applicant.  (instructed by Beston Macken McManis)

MR H.G. SHORE:   If it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

MR MENZIES:   If your Honours please, this application is for leave to appeal to correct error in the Court of Appeal of New South Wales which led, in this particular case, to a miscarriage.  The majority in the Court of Appeal overturned the decision of ‑ ‑ ‑

GUMMOW J:   What do you say about the passage at page 59, paragraph 71?  That seems to be the heart of her Honour’s reasoning on one view of it.

MR MENZIES:   It is, your Honour.  We deal with it this way:  the evidence which was incontrovertible or the evidence which was incontrovertible was this, that on this narrow road there were skid marks entirely on the defendant’s correct side of the road and if the collision occurred at the point where the skid marks began or anywhere along the course of the skid marks then obviously the plaintiff must fail, but there was no such evidence.

GUMMOW J:   So you say the trial judge had not acted on evidence inconsistent with facts incontrovertibly established, et cetera?

MR MENZIES:   That is so, your Honour.  We say that the facts incontrovertibly established were that the car skidded for some 10 metres on its incorrect side of the road but says nothing about where it was at the point of impact.

McHUGH J:   Just remind me again about the facts.  Your client, you say, was on the opposite side of the road from where the vehicle ended?

MR MENZIES:   Yes, on her correct side.

McHUGH J:   On her correct side.  Now, was she heading towards the blind bend in the road or was she going away from it?

MR MENZIES:   No, she was heading – they were both heading towards a curve in the road.

McHUGH J:   Curve in the road, right.

MR MENZIES:   It was the plaintiff and her companion were riding draughthorses ‑ ‑ ‑

McHUGH J:   Yes, I understand.

MR MENZIES:   So our simple point is that when the collision – the plaintiff and her companion both say they were on the correct side of the road.  When the collision occurred – and there is some expert evidence to support it but probably one does not need it, that both Kombi van and the horse behaved like billiard balls; they were both deflected.

McHUGH J:   Mr Menzies, it is a worrying case but why should we grant special leave?  After all, does it come to anything more than this, that the Court of Appeal just got it wrong; they did not apply Devries; they did not apply Abalos?

MR MENZIES:   No.  We can put it no higher, and the way that we do put it is that in this particular case it was a significant injury to the plaintiff; the damages were assessed at over half a million dollars; there was no issue upon damage and the Court of Appeal got it wrong and for that reason alone it should be revisited by your Honours.  It was a majority judgment in the Court of Appeal.

McHUGH J:   Yes.

MR MENZIES:   The dissentient, in our respectful submission, expressed the position absolutely correctly.

McHUGH J:   Well, there is nothing further you can say.

MR MENZIES:   No, there is nothing further we can put.

McHUGH J:   Yes, Mr Shore.

MR SHORE:   Thank you, your Honour.

McHUGH J:   Mr Shore, it is not the sort of case that we would ordinarily take on, although from time to time we use what I call the visitorial jurisdiction, namely revisit some of these cases to correct patent error, and arguably this is such a case.

MR SHORE:   Your Honour, I had better deal with that.  Your Honour, as I understand it, no question of principle is being alleged in the case ‑ ‑ ‑

McHUGH J:   No.

MR SHORE:   ‑ ‑ ‑ but simply a miscarriage of justice.

GUMMOW J:   Yes.

MR SHORE:   Your Honour, in my submission, the facts at trial were very powerfully in support of the defendant’s case.

McHUGH J:   They may been but the trial judge found the plaintiff and her witness to be witnesses of truth and they said they were on the right side of the road.  Now, you need a powerful case then for any Court of Appeal to say, “Well, I am not going to accept that.”

MR SHORE:   Well, your Honour, the evidence which came from Mr Murdoch in particular – and I deal with the plaintiff or the applicant separately – was completely and utterly inconsistent with the skid marks that his Honour found.  I mean, your Honours have seen the finding that he made.  Your Honours, Mr Murdoch said that there were no skid marks.  That is the first thing.  That appears at application book 48 point 45.  Not only that but he said in cross‑examination – and it is referred to in my submissions – that the position of the vehicle was such after collision at a time when it had been observed by the police officer to be on its correct side and by the ambulance officers to be on its correct side, he said that the position was such that it finished partly on its wrong side of the road.  In short, his evidence was completely and utterly inconsistent with the finding that his Honour made and with the evidence of Sergeant Volf in that regard.  The reference to the ambulance officers confirming the position of the vehicle on the correct side of the road appears at application book 9W to 10B.

So far as the plaintiff or applicant was concerned, she had consumed a certain amount of alcohol, and that was the subject of evidence and it has been referred to in the submissions.  The most that she could say was that she had a perception that she was on her correct side of the road.  But, your Honours, could I just for a moment put this:  her contention at trial was that she was so far onto her correct side of the roadway as to be in the equivalent of the passenger seat, if it had been a vehicle, and that Mr Murdoch was in the position of being in the far left‑hand side of the vehicle had she been travelling in a vehicle.

McHUGH J:   Yes, I know but these are matters of detail and you had a strong case at the trial but the trial judge accepted that they were on the correct side of the road and he no doubt took into account Mr Murdoch’s evidence that he had an altercation with one of the police officers and there are many things that are in your favour.  Both Murdoch and his horse went over the side of the road on the downhill embankment, for example, which favours you.

MR SHORE:   Well, there was evidence to that effect, yes.

McHUGH J:   Yes.  It favours your view of the case and if you looked at it on the transcript I think the probabilities are in your favour, but once the trial judge made this finding, you in an appellate context faced a huge hurdle.

MR SHORE:   The finding that your Honour refers to was one that was expressly based upon the evidence of Mr Tindall.  His Honour referred to that.  By a process of reasoning that is referred to in the judgment in the Court of Appeal that was found to be – and in my submission it was a correct approach – not an available approach to his Honour.  In short, his Honour said, “The skid marks were on the correct side of the road but I accept Mr Tindall as providing an explanation for why the collision could have occurred on the other side and the vehicle suddenly got back onto its correct side.”

McHUGH J:   Is this a common practice just to put in an expert’s report like this and then not call the expert?

MR SHORE:   Your Honour, it is probably not uncommon on circuit in Moruya in a busy list, but there was evidence that was placed before the Court of Appeal, with the consent of Mr Menzies, showing that we had sought to cross‑examine Mr Tindall and he was unavailable I think because of illness or being overseas, one or the other, and a letter was tendered to that effect in the course of the appeal.  So, yes, it is reasonably common but it was not our intention at trial to do it that way.

McHUGH J:   Whatever happened to the old practice when I was at the Bar of putting a plaintiff’s evidence to the expert witness and then asking him to express an opinion about this or that or whatever the relevant facts are?  That does not exist any more?

MR SHORE:   Your Honour, it probably exists but it is harder to do on circuit than it is otherwise.  There might be 50 cases in the list and a running list and 10 cases per day.  So it would be difficult in practice and, indeed, when Mr Justice Fitzgerald referred to “ivory tower considerations” it was in that context that the remark arose, rather than in the context in which he recorded it.

In order for his Honour to conclude as he did that the collision took place on its correct side of the road for the horse and then the vehicle went over to the other side, he had to rely upon Mr Tindall.  The process of reasoning was not sufficient.  Mr Tindall, at the time he expressed the view that his Honour relied on, did not even have available to him the proposition

that there were skid marks of the description recorded by Sergeant Volf.  When he did, he could not come up with an explanation that was sufficient, except to say, on the probabilities, the collision had occurred in the course of the skid marks.  Ergo, if it did occur in the course of the skid marks, it must have occurred when it was on the incorrect side of the road.

Your Honours, this was a blind turn and the evidence of the plaintiff in that regard appears at page 19 to the effect that even the horse did not have the slightest chance of reacting because things took place so suddenly, but what is being proposed on behalf of the applicant in this application is that notwithstanding that there was, in effect, no time to do the slightest thing, the driver of the Kombi van somehow was able to allow a reaction time to go past, not to brake but to veer to the left, to get over on the correct side of the road, to then steer back to the right and then apply brakes and leave them entirely consistently on the correct side of the road.  Your Honour, that is a ridiculous proposition.

Your Honours, if there has been an injustice in this case, in my submission, it is that the defendant’s case was dealt with in the way it was at trial and that, with respect, has been corrected in the Court of Appeal.  They are my submissions.

McHUGH J:   Yes, Mr Menzies.

MR MENZIES:   We accept the ridiculousness of the proposition which my learned friend raised but we do not put it.  What we simply say is, as the evidence revealed and accepted by his Honour, there was a sudden event, namely the two appearing together, a collision occurred, the car veered to its left, brakes applied, by then it is on its correct side of the road.  That is the simple explanation for it, which his Honour accepted and was open to him to accept and the existence of the skid marks makes no difference to that.

McHUGH J:   Yes, there will be a grant of special leave in this case.  Half a day?

MR MENZIES:   Yes, your Honour.

McHUGH J:   Half a day.  Yes, thank you. 

AT 10.36 AM THE MATTER WAS CONCLUDED