Hamamdjian v Lipovac

[2019] NSWCA 170

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hamamdjian v Lipovac [2019] NSWCA 170
Hearing dates:	8 July 2019
Date of orders:	11 July 2019
Decision date:	11 July 2019
Before:	Basten JA at [1]; Leeming JA at [52]; McCallum JA at [53]
Decision:	1.   Dismiss the appeal.  2.   Order the appellant to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – civil – challenge to findings of fact – whether trial judge erred in accepting evidence of defendant – resolution of inconsistencies – absence of independent witnesses – plaintiff bore onus of proof – judge entitled to have regard to inherent implausibility of plaintiff’s case   TORTS – negligence – liability for motor accident – vehicles travelling in adjoining lanes – liability dependent on whether defendant travelling straight ahead from right turn only lane
Cases Cited:	Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Category:	Principal judgment
Parties:	Haig Hamamdjian (Appellant) Mary Elizabeth Lipovac (Respondent)
Representation:	Counsel: Mr M Daley (Appellant) Mr A Black SC/Ms C Allen (Respondent)   Solicitors: Brydens Lawyers (Appellant) Moray & Agnew (Respondent)
File Number(s):	2018/393344
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 7 December 2018 Before: Sidis ADCJ File Number(s): 2015/142705

Judgment

1. BASTEN JA: On 15 March 2013 (now more than six years ago) the parties to this appeal were travelling north on Woodville Road, Holroyd, just south of the Western Motorway (M4) overpass. Woodville Road, going north, becomes Church Road after passing under the motorway.

2. Just before Woodville Road reaches the motorway, there is an intersection with Parramatta Road on the right and a slip road onto the motorway, westbound. There is also a slip road from Woodville Road onto the road leading up to the motorway westbound.

3. Just before the intersection, Woodville Road involves three lanes in each direction, although for a short distance the slip road on the western side might be considered a fourth lane. For the purposes of the proceedings, the kerbside lane (ignoring the slip road) was numbered lane 3, lane 1 being the lane nearest the median strip, travelling north. Lane 1 had “right turn only” arrows for traffic turning into Parramatta Road heading east. The other two lanes (2 and 3) were able to go straight ahead into Church Street, heading north towards Parramatta. The middle lane (2) could either go straight ahead or turn right.

4. The appellant, Haig Hamamdjian, was riding a “motorbike scooter” [1] in lane 2 (the middle lane of Woodville Road travelling north), intending to make a right hand turn into Parramatta Road. He came into contact with the left hand front of a motor vehicle driven by the respondent, Mary Elizabeth Lipovac. He did not come off his scooter, but suffered an injury to his ankle, neck and shoulders when righting his scooter after temporarily losing his balance. The appellant brought proceedings in the District Court claiming that his accident was caused by the negligent driving of the respondent.

   1.    Tcpt, 08/10/18, p 13(15).

5. The trial judge, Sidis ADCJ, rejected the appellant’s claim and entered judgment for the respondent. She also made a contingent assessment of damages. The appellant challenges the finding on liability. That is the only issue before this Court.

6. The finding on liability turned upon two diametrically opposed accounts as to where each party was at the time of the collision. The appellant’s account was that he was in lane 2, but indicating that he was turning right. He said that the respondent was driving in lane 1, being the right turn only lane but that, instead of turning right, she attempted to go straight ahead.

7. The respondent’s evidence was that she was in lane 2 (lanes 2 and 3 being entitled to go straight ahead) and was proposing to go straight ahead. She described the scooter as coming between her vehicle and a vehicle in lane 3 and clipping the front left hand side of her vehicle. She said that the accident occurred after she had stopped at a red light, with one vehicle in front of her, and had then commenced to move forward at some 10-20kph into the intersection.

8. So far as their intentions were concerned, it was not in doubt that each was travelling in the direction he or she indicated. Both were travelling to work at around 9am. The appellant’s employment required him to turn right into Parramatta Road; the respondent’s employment required her to go straight ahead towards Parramatta CBD. As the case was presented to the trial judge, and on appeal, liability turned entirely upon which lane the respondent was in. Had she been in lane 1, being a right turn only lane, but seeking to go straight ahead, she would have been responsible for the accident. However, if she were in the second lane, going straight ahead, her conduct was not negligent. Accordingly, determination of liability depended upon the appellant satisfying the trial judge that his account was correct and that the respondent’s account was incorrect. He failed at trial on that issue.

9. The respondent gave evidence that she had been working at the South Parramatta Branch of Westpac as a bank officer for five years. She had travelled the route she took that morning four or five days a week for the about 14 months. She had retired by the time she gave evidence. Her evidence was that she first became aware of the appellant’s presence when he clipped her left hand rear vision mirror, she thought with his right elbow.

10. The District Court judge believed the respondent. As the appellant conceded, she had not accepted at any stage that she was travelling in the right hand turn lane; there were, however, other inconsistencies in her evidence which the appellant suggested should have caused the trial judge to reject her as unreliable. The appellant did not deny that there were inconsistencies in his evidence also. His point was, rather, that the trial judge, in preferring the evidence of the respondent, failed to acknowledge the difficulties with her evidence.

11. There are four general propositions which may be helpfully applied in dealing with the supposed inconsistencies and how the trial judge addressed them, or disregarded them. First, there is the danger of changes in language used with repetition of an account of events. Lawyers tend to be alert to changes in the use of language and assume that changes are significant. That is commonly a false assumption with people making oral statements. Where a person is being questioned repeatedly with respect to a particular event, or even one aspect of an event, he or she may readily be inclined to use different language because it appears that the account given once, twice or perhaps more times, has not been understood. Why else, one may ask, does the questioner continue to probe the same matter? When the questioning takes place in court, a judge will be sensitive to signs of frustration and attempts to convey meaning in a different way, perhaps with attempted emphasis by way of exaggeration.

12. An example of this phenomenon which may have arisen in the present case was to be found in the respondent’s assessment of the speed at which she was travelling at the moment of collision. Her evidence was that she had been stationary at a red light and had only just started to move forward at the time the collision occurred. In her police statement dated 13 August 2013, the respondent stated, in part:

“I was in the middle lane of three lanes and the traffic was peak hour and I was travelling very slowly at about 10-20kph.”

13. In her evidence in chief, she did not specify a speed, but said that she had “stopped two cars from the lights” and “I sort of started, then I seen this motor bike well perhaps a Vespa, scooter, sorry, on my left between myself and number 3 lane, so he came up between the two cars and he hit my mirror light, mirror …. I stopped. … About a half a car length behind the lines. … I haven't entered, not into the intersection.” [2]

    2.    Tcpt, 11/10/18, p 215(28)-(41).

14. In cross-examination she was asked the following questions: [3]

    3.    Tcpt, p 228(20)-(35).

“Q. And you say you were stopped two cars from the intersection?

A. I was the second car.

Q. Stopped?

A. Yes, I stopped when he was, when he hit me, I stopped and he kept on going.

Q. How far had you moved when he hit you?

A. Not very far, from, not far at all, I just put my petrol(as said) on and then I stopped more or less straight away.

Q. How far had you moved, a couple of metres, more than a couple of metres?

A. Probably a metre, not even that.

Q. You're sure of that too are you?

A. I'm pretty sure I didn't go a long distance, no, yes.”

15. She was then asked with respect to the appellant’s speed: [4]

“Q. How fast was he going when he hit you, can you tell us that?

A. Just – not very fast, as slow as I was, just slightly faster than I was only doing about 30, 30 ks, not even that.”

4.    Tcpt, p 233(17).

16. The cross-examiner suggested that she told the police that she was travelling “slowly about 10 to 20 kilometres an hour?” with which she agreed. It was then noted that she had said in court that she only “moved about a metre”. [5] The cross-examiner asked:

“Q. There's a big difference between moving a metre--

A. I was moving.

Q. --and travelling at 10 or 20 kilometres an hour your Honour?

A. Well, I was telling, I was going slow, so they asked for a speed, what speed can you give them, I said, slowly. And they asked me a speed, so you tell them what you think is the speed. I mean, I was – it's slow, I just took off. Just, you know, started to move, so, that's – I don't know, I can't – I don't look at the speedometer every time or the speed whatever. When you put your foot on the petrol, when you start. So it was an assumption from what I was going.”

5.    Tcpt, p 237(20).

17. On one view there was an inconsistency, or at least manifest confusion, in this evidence, as the cross-examiner attempted to demonstrate. However, whether the respondent’s estimate of speed had been a response to persistent police questioning, without a real knowledge of her likely speed, and whether the estimate of going “a metre, not even that” was an expression of frustration at estimating distance, a trial judge would be well placed to determine. It is not an issue which can readily be determined by this Court with any degree of confidence.

18. The second proposition is that counsel often seek to identify inconsistencies by reference to what has not been said on an earlier occasion. Thus, in the present case, the appellant gave an account of what happened to (i) at least one person seen at the local medical centre; (ii) the ambulance officer who conveyed him to Westmead Hospital from the medical centre; (iii) at least one person at Westmead Hospital; (iv) a police officer, and (v) subsequent treating doctors. The content of such statements, the significance of inclusions or omissions, and variations in terminology can only be usefully assessed with knowledge of the question or questions which elicited the information and an understanding of the purpose for which the person recording the information wanted the information.

19. In the present case, the appellant was questioned about what he said and did not say to the police officer, and what was recorded on a personal injury claim form prepared for his employer’s insurer. The respondent was cross-examined in relation to what she said to the police and the “incident details” recorded by her insurers repairer, namely:

“I was driving north on Woodville Rd in a 3 lane road and I was situated in the middle lane and all of a sudden on my left lane a scooter I believed tried to merge into my lane and didn't realise I was there and hit into me.”

20. Often it will be inutile to cross-examine on the basis of such statements because the person providing the information did not record what was said, nor would the speaker necessarily know what was deemed important by the person recording the information. Thus, understandably, the appellant was not cross-examined about statements in the medical records, about which he could probably have said little. Further, it is most unlikely that he would have given useful evidence as to what he said to various medical officers some five years before the trial. Further, if an account of the incident were given in response to an open-ended question, such as “what happened?” it is likely that the person responding will provide a brief answer depending upon his or her assessment of what is sought in the circumstances.

21. There is no doubt that inconsistencies which derive from prior statements will often be treated with some caution by a trial judge because the underlying factors which may affect how a question was asked and answered will not be known. In this respect, it may be said that an appellate court is in a similar position to the trial judge, although it will not have the benefit of other factors affecting the assessment of a witness’ reliability or credibility generally.

22. The third proposition is that a witness will commonly make an assumption, or at least draw an inference, from known facts to fill in gaps in the person’s knowledge. That common experience can have a range of consequences. Two such consequences are relevant in the present case.

23. First, it was clear from the statements of the incident given at various times by both parties that each had, on occasion, worked back from what he or she had perceived to what he or she believed must have been the case. With respect to the appellant, his early statements included assertions that (i) he was in the middle lane; (ii) traffic from the middle lane was entitled to turn right; (iii) he had his blinker on and was intending to turn right, and (iv) he collided with a vehicle on his right hand side. Later statements included the proposition that the vehicle on his right hand side was in the first lane next to the median strip, being the right turn only lane. On the assumption that he did not see the vehicle before it hit him (or he hit it), that must have been an inference he came to draw from that which he believed he knew. To similar effect, the respondent initially made statements to the effect that she was not aware of the scooter before it collided with her left wing mirror, but later referred to noticing the scooter when it was alongside her rear door. It is possible that the additional detail was an inference drawn on the basis of a belief as to where the scooter must have been just before it collided with her wing mirror.

24. A fourth proposition is that a cross-examiner may make a temporal assumption about the continuity of understanding. This may be apparent from a failure to realise that the witness has drawn his or her own inference about what may have happened. It is also illustrated by an assumption that a state of knowledge or belief is persistent over time. Thus, in the present case, much was sought to be made about differing terminology used by the respondent in relation to the conduct of the appellant. Thus, the respondent was cross-examined about statements to the effect that the appellant appeared to be trying to “merge” into her lane. The following exchange took place: [6]

    6.    Tcpt, p 230(25)-(45).

“Q. Do you know whether he was wholly in your lane or partly on the lane dividing, lane divider or wholly in the other lane at the time he struck your car?

A. No, he would have been in the middle, I can't say, I couldn't tell if this, he was in between the two cars, so we were in our lanes, how we should be, so I presume it's in the middle.

Q. So he wasn't changing lanes?

A. No.

Q. Wasn't merging with you?

A. No, no, no.

Q. You know there's a difference between merging don't you [sic]?

A. Yes, I know what merging is and no, he was driving in between the two

cars, between the two lanes.

Q. And what he was doing was definitely not merging?

A. Definitely.”

25. In the previous page, the respondent had been asked if she understood the term “lane filtering” and had said, “I presume that’s going through lanes, yeah.” [7] The cross-examination continued:

“Q. That's what you say he was doing?

A. Yes. I don't know what if he was doing, but he was doing that at the time I seen him, yes and the time that he hit me, yes.”

7.    Tcpt, p 229(33).

26. Whether the later cross-examination was intended to indicate a distinction between lane filtering and changing lanes was unclear. The judge thought that the later cross-examination was based on a distinction between “changing lanes and merging”. [8] The cross-examiner did not return to the concept of “filtering” but did seek to establish an inconsistency with the respondent’s statement to her car repairer that she believed that he “tried to merge into my lane”. [9] At no stage was it put to the respondent that she understood and used the term “lane filtering” before giving evidence, nor that she drew a distinction between merging and changing lanes, or merging and filtering, in discussing the incident with other persons. In her reasons, the trial judge dealt with this cross-examination in the following terms:

    8.    Tcpt, p 231(5).

    9.    Tcpt, pp 234(16)-235(10).

“[19]   There was much questioning about whether the plaintiff was filtering between traffic or merging into her lane. The defendant said he was travelling between her car and the vehicle immediately to her left. The defendant’s attention was drawn to a Motor Vehicle Assessment Report of her insurer (Exhibit Z) where the following was recorded:

I was driving north on Woodville Road in a 3 lane road and I was situated in the middle lane and all of a sudden on my left lane a scooter I believed tried to merge into my lane and didn’t realise I was there and hit into me.

[20]   The defendant said she did not remember the precise terms of the information she supplied to the repairer. She thought she might have speculated that the plaintiff tried to merge. She maintained in evidence, however, that he did not merge.

…

[22]   These statements were relied upon by the plaintiff for the submission that the defendant made several attempts at her version of how the accident occurred, while the plaintiff was said to have been consistent throughout.

[23]   It was true that the defendant used words interchangeably to describe how the parties’ vehicles came into contact, whether because the plaintiff filtered between cars and became unbalanced when his elbow struck her wing mirror, or whether he merged or pulled into her lane. However, at no stage did she accept that she travelled in lane 1. Her evidence on this point was consistent throughout.”

27. The appellant described these paragraphs as failing to consider and give appropriate weight to the fact that the respondent gave various inconsistent versions of the accident. In the written submissions, and indeed in oral submissions, dismissing the supposed inconsistencies as interchangeable use of phraseology was challenged as an error. However, the judge’s assessment was entirely appropriate in the circumstances. The supposed error assumed that the respondent used the term “merge” to describe what the appellant was trying to do, when speaking to the vehicle repairer; it further assumed that at that time, some five years before the trial, she distinguished between merging and changing lanes; it assumed that she would not have described lane filtering (whatever that may mean) in that way in 2013, each of those assumptions not having been explored with the witness.

28. In the course of oral submissions, in describing the respondent’s understanding of the appellant’s actions, the following exchange took place:

“COUNSEL: So the plaintiff, the defendant's version. … Was that the plaintiff was lane channelling in between the two cars, no dispute about that.

HER HONOUR: Lane channelling?

COUNSEL: Yes.

HER HONOUR: Okay, that's another word for filtering is it?

COUNSEL: I'm sure it is a word for filtering. There's no doubt about that.”

29. In this context as in others, English is replete with interchangeable phrases. While consistency is desirable in legal usage, it is fallacious to assume that colloquial phrases are used consistently by all people at all times and over time.

Other inconsistencies

30. A number of the inconsistencies relied upon by the appellant have been addressed in the foregoing discussion. There were others which tended to be peripheral and can be addressed briefly.

(a)   cautioning respondent

31. First, there was questioning of the respondent as to whether she was “cautioned” by police when she was interviewed on 13 August 2013. Early in her cross-examination the respondent was asked about the circumstances of her giving a statement to the police some five months after the accident. She was asked: [10]

    10.    Tcpt, p 219(15)-(30).

“Q. And when you spoke with the police you were aware that they [were] looking into possibly charging you for what took place at the intersection--

A. No.

Q. --weren't you?

A. No, I wasn't.

Q. Didn't they give you a caution about what you say--

A. No.

Q. --might be used in evidence against you [sic]?

A. No, they just asked me … to tell them what happened on that day.

Q. They didn't give you a caution?

A. No.”

32. The extract from the police officer’s notebook admitted in evidence indicated that she was told there had been an allegation that the driver of a specified motor vehicle was guilty of an offence of negligent driving and the officer said that he required the respondent to give the name and address of the driver. She was warned that “failure to comply with this request may be an offence.” She responded: “It’s me, that’s me.” She was then asked “Can you tell me what happened?” and her response was written down by the officer; following which the respondent was told that the officer was going to ask some further questions and that he or she would “record what you say” and “can use that as evidence in court.” She said she understood. She signed the statement. Having been permitted to read the statement, [11] she was referred to the statements set out above and asked the following questions: [12]

“Q. You understood, sorry, you were mistaken earlier in your evidence about that, weren't you? You said you didn't get a caution. I said to you you did?

A. In fact don't recall it as a caution, but, yes, that's all right, yes.

Q. What did you understand he was saying to you if it's not a caution?

A. No, if I suggest a suggestion, but anyway, doesn't matter; it was a caution.

Q. You understood at that point that you were possibly going to be charged out of what took place at that intersection?

A. Now I do, but I didn't – it was not my fault, so I did not expect to be charged and I still don't expect to be charged, but anyway.”

11.    Tcpt, p 236(10).

12.    Tcpt, p 236(34)-(45).

33. The evidence concerning the caution was addressed briefly in submissions counsel stating that “she knew full well and she was given the opportunity by the police to tell them everything”. It was not entirely clear whether the submission implied that she had been lying to the Court, but no such suggestion was made to her in this respect, though it was in other respects. The judge dealt with this issue in the following paragraph:

“[17]   The police record (Exhibit Y) indicated that the defendant was cautioned at the time she provided a statement on 13 August 2013. It was put to the defendant that she was cautioned that she might be charged or given an infringement notice as a result of the accident. Her failure to remember this caution was said to have been another indication that she believed she was at fault. That the defendant did not remember receiving a caution in the terms put to her was unsurprising since the caution set out in the police record related to the failure to comply with the request to supply the name and home address of the driver rather than the commission of any driving offence.”

34. It is true that this passage constituted an incomplete statement of what was said by the police officer. However, the inference that there was an implied admission of fault in failing to remember the caution was clearly fanciful and properly dismissed by the judge. In this Court, the appellant submitted that the respondent “was wrong concerning not being cautioned …. The primary judge likewise made the same error.” [13] Whatever “error” the primary judge made, was inconsequential. Reading the cross-examination in context, it may be that the questioner intended to imply that the respondent’s memory of the police interview was less than complete and, by inference, her memory of the incident was unreliable; there was no suggestion she was admitting fault. The evidence was entirely unremarkable.

    13.    Appellant’s written submissions, p 12, par 41(g).

(b)   apology

35. There was a dispute as to whether or not the respondent had apologised when she spoke to the appellant after the incident. His evidence in that regard was somewhat equivocal, stating in chief: [14]

“A. She was ringing somebody, even before like she come up to me, she's apologising and apologising, I've just got to ring and she just got on the phone and instead of talking to me and saying, look something, I think she just got straight on the phone.

Q. I know you said she apologised to you?

A. Yes.

Q. Can you remember as best you can the exact words she used to you?

A. It's a long time ago. She said she was sorry, she said something about work and then, was half in between her phone conversation that she was sort of trying to get a couple of words out.”

14.    Tcpt, p 16(36).

36. In cross-examination it was put to the appellant that she did not apologise to him but asked if he was all right. He insisted that she apologised, continuing: [15]

“A. She did not ask me if I was all right actually, she did not ask me that question at all. She apologised to me and started to go on about her world, about work, this, that and all the rest, she was going on about her world and you know what, I just could not believe that she could not acknowledge that she had just hit me, right now, she was going on with her world on, over the phone.”

15.    Tcpt, p 184(17).

37. If the apology did not include any acknowledgment that she had hit him, its value as an implied admission of liability must have been limited.

38. In her evidence in chief, the respondent said she “sort of asked him is he all right, is he, you know, has he hurt himself. And he didn’t answer really.” She denied she had apologised to him and said, “I had no reason to … I had no reason to, it wasn’t my fault.” [16] This evidence was repeated in cross-examination. [17]

    16.    Tcpt, p 216(25)-(35).

    17.    Tcpt, p 233(20)-(36).

39. In written submissions, the appellant merely asserted that, while denying she had apologised to him, she did not assert he had apologised to her. That was true, but hardly significant. The judge noted the discrepancy in the evidence,[18] but did not find it necessary to resolve the contradiction. That was a reasonable approach because nothing had been made of it in submissions.

    18. Judgment at [12].

(c)   payment of excess

40. A form of admission was also sought to be inferred from the respondent’s payment of the $600 excess for the repairs to her car. In written submissions, this was described as an “unsatisfactory feature” of the respondent’s evidence which was not dealt with by the primary judge. [19]

    19.    Appellant’s written submissions, p 11, par 41(a).

41. In cross-examination the respondent was asked: [20]

“Q. Didn't you think you should do something more once they asked for $600 from you to pay for the excess?

A. No. Why should I?”

The matter was left there. In submissions at the trial, counsel for the appellant stated that “if she wasn’t at fault she shouldn’t have been paying that excess, but she did.” [21] Counsel conceded that he had not pursued with her whether she had made any inquiry about the prospect of recovery, following which the judge said: [22]

“I don't know, you didn't ask her, so how can I conclude that she paid the excess because she was implicitly accepting liability?”

There was no answer to that question. The issue did not require treatment in the judge’s reasons.

20.    Tcpt, p 228(6).

21.    Tcpt, p 257(30).

22.    Tcpt, p 257(47).

Conclusions – liability

42. The exercise required of this Court is to be carried out in accordance with the principles stated in Fox v Percy [23] by Gleeson CJ, Gummow and Kirby JJ:

“[25]   Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen or heard the witnesses, and should make due allowance in that respect’.”

The qualification with which the first sentence opened reflected the matters set out at the end of the second sentence in this passage.

23. (2003) 214 CLR 118; [2003] HCA 22.

43. By way of further explanation, the joint reasons observed:

“[23]   … On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance.’[24] On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. [25] These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. [26] Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. [27] ”

24. Dearman v Dearman (1908) 7 CLR 549 at 561. The Court there was concerned with s 82 of the Matrimonial Causes Act 1899 (NSW) which provided that “on appeal every decree or order may be reversed or varied as the Full Court thinks proper”: see Dearman v Dearman (1908) 7 CLR 549 at 558.

25. Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281.

26. Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.

27. SRA (1999) 73 ALJR 306 at 330 [89]-[91]; 160 ALR 588 at 619-620, citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210; Jones v The Queen (1997) 191 CLR 439 at 466-467.

44. McHugh J, to the same effect stated:

“[90]   It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise — in accordance with a long line of authority — that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses.”

45. As noted above, the present case turned upon the resolution of a very simple factual dispute. Apart from objective circumstances, there were only two witnesses to the facts, the appellant and the respondent. Although the appellant complained that the trial judge failed to make findings with respect to the credibility of the parties, that approach was consistent with the approach adopted by counsel for the appellant at trial. He stated in final submissions to the trial judge: [28]

“I'm not suggesting she's lying, your Honour, I'm a firm believer in [the lyric by Paul Simon] that a man believes what he wants to believe and disregards the rest. My submission is, it's probably her reality that she was in that second lane. But she's wrong. She's wrong because everything about how this accident occurred fits with the plaintiff's version ….”

As the judge immediately pointed out, equally the plaintiff could have firmly believed that the defendant was in lane 1 and been wrong. [29]

28.    Tcpt, pp 258(50)-259(7).

29.    Tcpt, p 259(15).

46. The exercise in fact finding undertaken by the parties and the judge was to consider by reference to earlier statements and objective circumstances, which party was more likely to have been correct in his or her account of the events leading up to the collision. Reviewing all of the relevant material, the trial judge came to the view that the plaintiff had failed to persuade her that his account was correct. Rather, she was affirmatively satisfied of the respondent’s account, stating that she could not on the balance of probabilities conclude that the respondent “acted in such a foolhardy fashion” as to seek to go straight ahead across the intersection from the right hand “right turn only” lane. There was no hint in the evidence as to why she would have been in that lane, given (i) her unchallenged intention to go directly across the intersection into Church Street; (ii) that that was a routine she had followed for four or five days a week over a period of some 14 months prior to the accident; (iii) she knew the intersection well; (iv) the traffic was heavy, and (v) she also knew that most of the traffic in the middle lane turned right, as it was permitted to do, into Parramatta Road travelling east. That was why it would have been foolhardy, if not in practical terms unrealistic, to consider moving across from the right turn only lane into the middle lane when virtually at the intersection. These circumstances weighed heavily in favour of the resolution adopted by the trial judge.

47. The respondent’s account that she was travelling in lane 2 and seeking to go straight across the intersection was not only plausible, it was not necessarily inconsistent with the appellant’s account, except for his insistence that the respondent was in fact in the right turn only lane. Both accounts are consistent with the fact, demonstrated by the mechanism of the accident, that the appellant was on the left hand side of the respondent’s vehicle at the point of collision.

48. There is, however, one aspect of the appellant’s account which is difficult to reconcile with the mechanism of the accident. The appellant’s evidence was that he came to a stop at the intersection in lane 2 when he was “probably about four cars back or something from the lights and then the lights changed and I started to go.” If that were the case, the respondent, whether in the right turn only lane or in the same lane, was two vehicles in front of him. His account of being stationary in the lane does not explain how he came to be at the front passenger side wheel of the respondent’s vehicle within seconds of the light changing. That change in position could only have occurred in one of two ways: it was possible if the right turn only lane moved more slowly than lane 2 when the lights changed, or, in the alternative, if the appellant were “filtering” between the cars in lane 2 and lane 3. The latter account is consistent with the respondent’s evidence; there was no evidence to support the former possibility.

49. In this Court, the appellant submitted that, because there was no issue about credibility of the witnesses, this Court was in as good a position as the trial judge to assess the facts. However, in the course of oral submissions, counsel for the appellant conceded that, if he could establish error on the part of the trial judge, the matter would have to go back for a rehearing. That acknowledgement was correct. This was a case in which there was at least implicitly an acceptance that the respondent’s evidence was more reliable than the appellant’s evidence. If there were error in making an express finding in that regard, the matter is not one which this Court could resolve without having heard the witnesses.

50. But there were undoubtedly aspects of the trial of which this Court has no knowledge. For example, when it came to an assessment of damages, the judge made the following observations about the plaintiff’s presentation as a witness:

“[97]   There was much in the plaintiff’s presentation to the Court that was of concern. He clearly did not respond well to the stress of the situation. He often became angry and argumentative in cross-examination. He failed to address questions. He gave responses that were lengthy and dissembling. He accused the defendant’s counsel of lies and of attacking him unfairly. When challenged on the discrepancies and inconsistencies in his evidence he became aggressive and argumentative rather than providing a direct answer or explanation.

…

[99]   His conduct left the Court to decide whether it was the product of a psychiatric injury suffered as a result of the accident or whether it was, as submitted by the defendant, evidence of embellishment and exaggeration.

[100]   The plaintiff’s credit was attacked because of anomalies and inconsistencies in his evidence.

[101]   He claimed a record of employment as a truck driver during periods when he was not licensed to drive heavy vehicles or to drive at all.”

51. In any event, the question of remittal does not arise; the appeal must be dismissed because the appellant has failed to establish material error in the reasoning or the conclusions of the trial judge. The appellant must pay the respondent’s costs in this Court.

52. LEEMING JA: I agree with Basten JA.

53. McCALLUM JA: I agree with Basten JA.

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Endnotes

Decision last updated: 11 July 2019