Hinton v Valiotis

[1999] NSWCA 433

CITATION:	Hinton v Valiotis & Anor [1999] NSWCA 433
FILE NUMBER(S):	CA 40207/97
HEARING DATE(S):	07/05/99
JUDGMENT DATE:	26 November 1999
PARTIES :	Raymond Kenneth Hinton - Appellant James Valiotis & Bigyan Chand - Respondents
JUDGMENT OF:	Beazley JA at 1-29; Stein JA at 30-38; Brownie AJA at 39-55

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD20475/94
LOWER COURT JUDICIAL OFFICER:	Sperling J

COUNSEL:	J. Cummins QC with B. Vasic for the Appellant C. Hoeben SC with S. Climpson for the Respondents
SOLICITORS:	Friend & Hazard, Waterloo for the Appellant Connery & Partners, Sydney for the Respondents.
CATCHWORDS:	This case turns on the facts
CASES CITED:	Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Abalos v Australian Postal Commission (1990) 171 CLR 167 Ahmedi v Ahmedi (1991) 23 NSWLR 288 Dearman v Dearman (1908) 7 CLR 549
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40207/97
CLD 20475/94

BEAZLEY JA
STEIN JA
BROWNIE AJA

FRIDAY, 26 NOVEMBER, 1999

Raymond Kenneth HINTON v James VALIOTIS & Anor

JUDGMENT

1 BEAZLEY JA: I have had the advantage of reading in draft the judgment of Brownie AJA. It is not necessary therefore to repeat the facts. 2 The question in issue on this appeal is, in my opinion, whether the trial judge’s decision should be disturbed given the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries v Australian National Railways Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) 160 ALR 588 (the Abalos principle). 3 As explained in Devries v Australian National Railways Commission, (per Brennan, Gaudron and McHugh JJ at 479), the Abalos principle requires 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’.”

4 However, as Deane and Dawson JJ observed at 480 no “short exhaustive formula” such as ‘glaringly improbable’ meets every case. See also Gaudron, Gummow and Hayne JJ in State Rail Authority v Earthline at 589. The Abalos principle does not give license to an appellate court, required by statute to proceed by way of rehearing, to merely ask whether there is a finding of credit and if so whether the particular case falls within what have come to be regarded as “exceptions” to the rule. Rather, the Court’s task is to determine whether there is error of law or error in the fact finding process such that the decision should be reversed. When a decision is dependant on the trial judge’s finding of credit, that finding must be given particular weight in accordance with the principles stated in Abalos. But this does not permit an appellate court to abrogate the responsibility to determine a matter on appeal by way of rehearing: see Ahmedi v Ahmedi (1991) 23 NSWLR 288 per Kirby P at 291; State Rail Authority v Earthline at 617. 5 In this case, the trial judge was faced with a clear conflict between the evidence of the appellant’s principal witness and the second respondent, who was the driver of the taxi involved in the accident. I will refer to him as the respondent in the proceedings. Not only did each give differing versions of how the accident happened, his Honour was also confronted with inconsistencies between the oral testimony and out-of-court statements of both. A prior inconsistent statement by a witness can be a valuable guide to a court in assessing the credibility of a witness. However, in this case both relevant witnesses had made out of court statements inconsistent with their oral testimony. The difficulty I have with the trial judge’s determination in the matter is the manner in which he approached the evidence of these two witnesses, given that the evidence of both was open to a similar challenge. 6 The appellant’s principal witness was Mr Page, a friend who was with the appellant at the time of the accident. The trial judge rejected Mr Page as a credible witness (even though he thought Mr Page was trying to do the best he could) on the basis of a prior inconsistent statement and also because his evidence conflicted with other evidence in the case, particularly that of the passengers in the taxi cab. His Honour was entitled to take that approach to Mr Page’s evidence and was entitled to form the opinion he did as to his credibility. That left the evidence of the respondent, the passengers in the taxi cab and the expert witnesses. 7 At the trial, the credibility of the respondent’s evidence was challenged by the appellant for essentially the same reasons as the trial judge rejected Mr Page’s evidence - namely a prior inconsistent statement and inconsistency between the respondent’s evidence and that of other witnesses. In addition, in the respondent’s case there was internal inconsistency in his oral evidence. Notwithstanding these inconsistencies, his Honour accepted the respondent’s evidence. 8 After anxious consideration, I have reached the conclusion that his Honour’s fact finding process reveals error in two related respects. First, I have formed the opinion that his Honour failed to apply the rule in Browne v Dunn (1893) 6 R 67 and there was thus a failure of procedural fairness. Secondly, his Honour made comments or findings about certain evidence, which assisted him in deciding to accept the respondent’s evidence, which comments or findings were not supported by the evidence. I will refer to some only of the passages in which I considered that his Honour adopted such an approach.

Presence of the Camry

9 The respondent said that a Camry was in the third lane slightly ahead of him at the time of the accident. The significance of this was that it partially blocked the respondent’s view of the roadway ahead. There was no mention of the Camry in the police report, although the respondent said in evidence that he had mentioned it to the police officer. The police officer had read the statement back to the respondent immediately after it was taken at the scene of the accident and the respondent had acknowledged its correctness. His explained his failure to point out to the police officer the omission of the Camry from the police statement by saying he had acknowledged its correctness not its completeness. Of this explanation the trial judge said:

“The explanation is plausible. [The respondent] said that, on an earlier occasion [in respect of a different accident], he had been asked to go to the police station to make a typed statement about an accident. He said he did not think that what he was telling the police officer on the night was to be his statement as he told it. It is plausible that he did not include every detail in these circumstances and that, when the statement was read back, he listened only to make sure that there was nothing in the statement which he regarded as being significantly incorrect.”

10 His Honour added:

“ It is also plausible that the interviewing police officer might not have regarded a reference to the Camry as being relevant . I say that having regard to an earlier part of the statement which could be read as meaning and could have been heard as meaning that [the respondent] had a clear view of the roadway from the parked vehicles at the kerbside median strip. (I shall come to that part of the statement.) The interviewing officer might have thought, in view of that earlier passage, that a vehicle in the third lane was irrelevant and might not have recorded a reference to it on that account, although mentioned.” (emphasis added)

11 His Honour also stated that he was “not much impressed with the standard of police work relating to this accident”. He noted that no signed statement was obtained from Mr Page - a principal witness - and statements were not obtained from the taxi cab passengers until two months later. His Honour added:

“Comformably, something mentioned by [the respondent] might simply have been left out due to carelessness.” (emphasis added)

12 None of the matters raised by the trial judge in the highlighted portions of the above passages were raised as issues in the case. There was no questioning of the police officer as to the thoroughness of the investigation either at the scene of the accident or subsequently. A reading of the officer’s evidence as a whole does not lead me to a conclusion that there was any such inadequacy, although that is a matter upon which different views could be held. The real point however is this does not appear to have been an issue at the trial. Notwithstanding that, his Honour appears to have formed a view as to the adequacy and standard of the police investigation and to have also made his own assessment as to what the police officer might have considered relevant and of the accuracy of the police officer’s note taking and used those matters to assist him in his credibility findings. 13 His Honour then turned to the evidence of Mr Casamento, one of the passengers in the respondent’s taxi. He said:

“On the same point - ie the Camry - counsel for the [appellant] relied on the evidence of the front seat passenger in the taxi cab, Mr Casamento. He did not notice a vehicle in the next lane. I give that no weight. It cannot be assumed that Mr Casamento was paying attention to the traffic before the episode. And when the pedestrian or pedestrians came to his notice he would have had his attention there.”

14 His Honour’s treatment of Mr Casamento’s evidence also runs into a similar difficulty. Mr Casamento was cross-examined as to whether he saw a vehicle in the lane to the left of the taxi. He responded “I don’t remember any other traffic at the time”. However, there was no examination or cross-examination of Mr Casamento to the effect that he might not have been looking out for another car, or that he was not paying attention or even that there might have been such a car and that he simply didn’t notice it or remember it. There was no re-examination. His Honour’s dismissal of this aspect of Mr Casamento’s evidence was based on an assumption which was not raised at any time in the evidence. In those circumstances, I find it difficult to see how the trial judge could, without more, give that evidence “no weight” . This almost summary dismissal of this part of Mr Casamento’s evidence is the more puzzling, given that there were other aspects of his evidence relating to the speed of the taxi which his Honour clearly did accept.

Appellant’s Change of Evidence

15 The presence of the Camry motor vehicle was a focal part of the respondent’s case. Notwithstanding that, there was dramatic change in the respondent’s evidence in relation to its position on the roadway relative the position of his taxi. In his evidence in chief the respondent said:

“Q. And after you turned into Flinders Street taking it step-by-step would you tell the Court what happened ?

A. Well there is two lanes turning into Flinders Street. I am in the far right lane on the left of me heading up. .There is a car which is a blue Camry about a metre and a half or so in front of me and we proceeded at the same distance and he touched on his brakes and so he was--

Q. Just pausing there, where are we now ?

A. Probably 30 or 40 metres into Flinders Street from the intersection and I thought there might be something so I let go of the accelerator…

16 His evidence was basically the same in cross examination:

Q. So then what happened was that you got to an area of about 30 or 40 metres into Flinders Street ?

A. mmm mmm

…

Q. What I am suggesting to you that you were more than 30 or 40 metres into Flinders Street when, as you say, the blue Camry touched his brakes, you were somewhere in the order of about a hundred metres. What do you say about that ?

A. I could have been.

Q. This much you are certain about, that you actually saw the Camry, when he was in front of you, touch his brakes. In other words, when I say you saw that, you saw the brake light come on. The rear brake -

A. Yes.

…

Q. And so that alerted you to some danger, did it, or a possibility of danger, the sudden touching of the brake lights ?

A Yes”

17 However in re-examination the following emerged:

“Q. In your evidence, both yesterday and today [the respondent], you said the blue Camry was one and a half meters in front of your vehicle. Can you just clarify for the court what you mean by that ?”

18 There was an objection for leading, and it was then put to him:

“Q. Would you please explain what you mean by that ?

A. Its something that I realised when I was on the break that I mis-said because I did not see the brake lights of the Camry, I was far too close to him; and when I say one and a half metres behind him, one and a half metres from the front of his car to the front of mine, which is probably his rear wheels are just three quarters - have been parallel same distance as my front bumper bar .”

19 The trial judge found that this change of evidence “was volunteered”. He thought that added to the respondent’s credibility. His Honour said:

“I think Mr Chand was sitting in judgment on his own recollection and may not have been being fair to himself. It seems to me from his description of the relative position of the vehicles that he might well have been able to see at least the left hand rear brake light of the Camry. He might also have seen the glow of the Camry’s brake lights, even if he could not see either of them directly. There might also have been a brake light mounted in the centre of the vehicle near the rear windscreen as is now commonplace and was not uncommon in 1992. I do not think that the evidence given in re-examination should be seen as detracting seriously from Mr Chand’s credibility if that is the only significant matter to be put against him, as I think it is.”

20 I have difficulty with his Honour’s view. The respondent’s evidence that he had seen the Camry’s brake lights left him exposed to the possibility of a finding that he was far enough away from the point of impact when he was first alerted to some upcoming danger to enable him to take some evasive or preventive action. The respondent revealed himself as a quick witted intelligent witness. It was at least likely that he appreciated the difficulty he was in. Whatever be the position, his Honour’s findings that the respondent “might well have been able to see at least the left hand rear brake light”; “[h]e might also have see the glow of the … brake lights”; “[t]here might also have been a brake light mounted in the centre of the vehicle near the rear windscreen” are assumptions which he made which assisted him to find in favour of the respondent’s credit. However, they were not matters which were based upon the evidence nor were they inferences drawn from the facts as his Honour found them. In my opinion, they were not assumptions available to his Honour for the purpose of making his ultimate fact finding determination in the matter, including on the matter of credit.

Speed of Taxi

21 In his statement to the police, the respondent had said:

“I was travelling south in Flinders Street at a speed of about 30-40 km/h.”

22 In cross-examination he said this was “completely untrue”. He was cross-examined as follows:

“Q If you look at the beginning of the statement you will see where you said you were travelling at 30 to 40 kilometres per hour, you see where you say that?

A Yes.

Q That was just completely untrue, wasn’t it?

A Yes.”

23 The respondent added:

“A Yes, I think [the police officer] asked me ‘What speed were you travelling when the accident happened?’

Q It doesn’t read that way in the statement though, does it?

A No, it doesn’t.”

24 The other evidence in the case established, and his Honour found, that the taxi was travelling at about 60 km per hour. However, his Honour accepted the respondent’s rationalisation of his statement to the police. He said:

“I think a word needs to be said about the circumstances in which this statement was obtained. The evidence was that [the respondent] was upset after the accident, as one would expect and assume. The police arrived promptly. [The respondent] was spoken to briefly. Others were interviewed. Then, after a period of fifteen minutes or thereabouts, the statement was taken from [the respondent] in the police notebook. This was not a situation calculated to bring a clear mind to bear on what had occurred. An unintended underestimate of speed would be a natural human response. It is also entirely plausible that, although asked what had happened, [the respondent] might well have been prompted to state initially the speed at which he was travelling at the time of the accident.”

25 His Honour concluded:

“I do not think that any material inconsistency is revealed by this part of the recorded statement.”

26 Again, with respect to his Honour, these findings were not based on the evidence. They were assumptions made by his Honour which were not the subject of evidence, and in particular were not the subject of cross-examination. It was not a matter raised by his Honour with counsel. In my opinion, his Honour’s view that the respondent’s statement as to speed was “an unintended underestimate” but also a “a natural human response” seems internally inconsistent. I would have understood the comment if his Honour had considered that the respondent intended to understate the speed to protect himself. But in any event, I consider that these statements go beyond the common sense and experience of every day life which a judge should bring to the factual determination of matters such as this. Rather, his Honour appears to have involved his personal views of different possibilities and scenarios which might explain the inconsistencies in the evidence. There was a palpable inconsistency in the respondent’s statement as to speed made to the police officer and his oral evidence. His Honour should have treated it as such rather than forming his own view as to why the inconsistencies occurred. In my opinion, to approach the matter as his Honour did goes beyond permissible fact finding. 27 There were other inconsistencies in the respondent’s evidence and in his statements to the police. On each occasion his Honour accepted the respondent’s explanations, expressing a number of reasons why such inconsistencies might have occurred. I will not repeat them all here. They are contained at pp 19-24 of his Honour’s judgment. One example is in the last part of the statement to the police where the respondent said he was two to three metres from the appellant when he saw him. Counsel for the appellant had submitted that this was inconsistent with other evidence given by the respondent and with other objective matters such as the length of the skid marks. His Honour said:

“I agree. The estimate was not just wrong but very wrong. However, on any view of the facts, the episode was over in a matter of seconds, from first sighting of the plaintiff to impact. I do not doubt that it might well seem to a driver, in the circumstances that occurred, that the pedestrian ran into his path a mere few metres ahead of him notwithstanding that the distance must have been considerably greater. Having regard also to the circumstances in which the statement was taken - including the respondent’s emotional state - allowances have to be made. I do not think that this answer reflected adversely on the respondent’s reliability and credibility when it came to giving evidence on oath in the relative calm of the courtroom.”

28 For my part, I do not see how a trial judge, confronted with as many inconsistencies and errors as appeared in the respondent’s evidence, could without more, accept it as credible evidence. It seems to me that what happened in this case is that his Honour, having rejected the appellant’s witness Mr Page, then, by a process of assumptions, some cumulative, some determinative, accepted the respondent’s evidence. In doing so, he appears to have decided the case on the basis that he had to prefer either Mr Page or the respondent rather than determining the matter on the whole of the evidence. I make this comment cautiously because his Honour did deal with other evidence in the case, for example, the evidence of the passengers. However, he did so dismissively on grounds which I have considered to be unsatisfactory. 29 In my opinion, his Honour should have found the evidence of the respondent to be unsatisfactory. Whilst that would have presented with a most difficult fact finding task, I do not consider that his determination should stand given what I consider to be the erroneous basis upon which he accepted the respondent’s evidence. It may be, of course, that his Honour would have reached the same conclusion as he in fact did. However, in my opinion, the Abalos principle does not protect the present case from appellate scrutiny for the reasons which I have sought to explain. I would allow the appeal and order a new trial.

**************

30 STEIN JA: I have had the benefit of reading the draft judgments of Beazley JA and Brownie AJA. I agree with Brownie AJA and with the order which he proposes. 31 I would add only some brief remarks of my own. The trial judge had before him conflicting evidence from Mr Chand, the driver of the taxi which struck the plaintiff causing serious injury, and Mr Page, a friend of the plaintiff who was crossing the street with him. His Honour had to make a judgment on their evidence. He examined the evidence of both witnesses in some considerable detail, weighing them up, considering them for internal inconsistencies and inconsistencies with other evidence, as well as with prior statements. His Honour considered questions of the plausibility of their evidence and concluded that the evidence of Mr Page was unreliable and Mr Chand’s generally acceptable. 32 As Brownie AJA observes, the appellant does not challenge his Honour’s conclusion with regard to Mr Page. The line of attack is essentially confined to his Honour’s acceptance and treatment of the evidence of Mr Chand. 33 The acceptance of Mr Chand’s evidence meant that the trial judge found that there was a blue Camry involved in the accident. Mr Chand described this vehicle, which stopped following the impact but then left the scene. It is the appellant’s case that there was no Camry so that Mr Chand, if he had been keeping a proper lookout, would have seen the appellant in time to avoid the accident. There were three passengers in Mr Chand’s taxi but none of them said anything about seeing a Camry in the vicinity. 34 As already indicated, his Honour accepted Mr Chand’s credibility including his evidence of the presence of the Camry. 35 In my opinion, the finding was open to his Honour and did not contravene the well known principles in Devries v Australian National Railways Commission (1993) 177 CLR 472 and Abalos v Australian Postal Commission (1990) 171 CLR 167, reiterated and explained recently in SRA v Earthline Constructions Pty Ltd (1999) 73 ALJR 306. Where a trial judge’s finding depends substantially on credibility, the finding must stand unless it can be shown that the judge failed to use or had palpably misused his advantage, or acted on evidence which was inconsistent with incontrovertibly established facts or was ‘glaringly improbable’. 36 In my opinion, the appellant has not established that any of these criteria have been met. As appears from Brownie AJA’s discussion of the facts, it is not apparent that his Honour failed to use his advantage or palpably misused it. So far as I can ascertain from the material before the court, his Honour did not act on any evidence which was inconsistent with incontrovertibly established facts. Nor could it be concluded that his relevant findings, scrutinised in the light of all of the evidence, can be said to be glaringly improbable. I would not feel justified in overturning his Honour’s finding of fact of the presence of the Camry on the roadway, generally as described by Mr Chand, or reject his evidence of this as unreliable. 37 In applying Devries and Abalos a court on appeal should be very conscious of the advantages of a trial judge having seen and heard the witnesses. Due allowance for this must be made, Dearman v Dearman (1908) 7 CLR 549. The subtle influences of demeanour cannot be overlooked, even if not expressly referred to (McHugh J at 179 in Abalos). Impressions gained from listening and watching the oral evidence of witnesses may sway a judge. This does not mean that an appeal court is precluded from concluding that a trial judge had too fragile a basis for a finding on credibility or that it is freed from the task of weighing conflicting evidence and drawing its own inferences. However, these circumstances need to be kept steadily in mind although not to be overestimated or misapplied. As Kirby P pointed out in Earthline (at 330), it is the true advantage of the primary judge (over an appeal court) which has to be considered. 38 When these considerations are applied to the appeal, I am unable to see that Sperling J’s judgment should be disturbed. The appeal should be dismissed.

**********

39 BROWNIE AJA: The appellant was injured in a motor accident which occurred at about 2.30am on 19th April 1992. He was a pedestrian, crossing Flinders Street, Darlinghurst from east to west, when he was struck by a taxi, owned by the first respondent and driven by the second respondent, Mr. Chand, travelling in a southerly direction. The plaintiff suffered brain damage, and was unable to remember any of the events of the day of the accident; and although there were a number of other witnesses called on the question of liability, the significant dispute at the trial was between the evidence of Mr. Page, a friend of the appellant who was crossing Flinders Street with him, and the evidence of Mr. Chand. 40 The learned trial judge, Sperling, J., concluded that the evidence of Mr. Page was unreliable, and he rejected it, in part because of inconsistencies between Mr. Page's evidence and his prior statements, and in part because of inconsistencies between his evidence and other evidence, accepted as reliable. His Honour also accepted the evidence of Mr. Chand, and concluded that he was not satisfied that the plaintiff’s injury resulted from negligence on the part of Mr. Chand. On appeal, the appellant did not challenge the conclusion that the evidence of Mr. Page should be rejected, and did not rely on Mr. Page's evidence. However, the appellant contended that Sperling J. should not have accepted the evidence, or all of the evidence of Mr. Chand, and that there should be substituted a finding that Mr. Chand was negligent. 41 Mr. Chand drove his taxi in a generally easterly direction along Oxford Street, and stopped at a traffic light in Taylor Square. When the lights changed colour, he turned right into Flinders Street and drove along that street until the accident occurred. In that part of Flinders Street there are four lanes for south-bound traffic, conventionally known as lane one, lane two, lane three and lane four, counting from the eastern kerb. There is a narrow median strip and there are three lanes for north-bound traffic on the other side of that strip. The accident happened near a building situated on the eastern side of Flinders Street known as the Taxi Club, or the Grosvenor Club, and opposite a service station on the western side of the street. The roadway was level and dry, and the street lighting good. There were vehicles parked in lane one, and, more likely than not, there was a taxi parked in lane two, either taking on or letting down a passenger or passengers, and perhaps there were other vehicles also stationary in lane two. The stationary taxi was situated a little to the north of the Taxi Club. The appellant and Mr. Page had been drinking alcohol and on any view of the evidence, they were affected by that alcohol. The appellant was found after the accident to have a blood alcohol content of 0.205 g/10O ml, and the expert evidence showed that he had drunk the equivalent of 16-17 middies of beer. The appellant and Mr. Page left the Taxi Club, intending to cross Flinders Street, with a view to hailing a north-bound taxi once they had reached the western kerb. They walked out from the eastern kerb between two vehicles parked in lane one, and in front of the stationary taxi in lane two. After Mr. Page saw Mr. Chand's taxi approaching them they started to run across lanes three and four. Mr. Page was slightly to the north of the appellant, and slightly ahead of him. He described how he ran across lanes three and four, reaching the median strip in safety, but only just before Mr. Chand’s taxi passed closely behind him. It is not in dispute that the appellant was also running, as he crossed lane three and entered lane four. He was struck by the front of the taxi, near its left-hand headlight. 42 On the respondents' case, there was a blue-coloured Camry which, like the taxi, had stopped at the traffic lights in Taylor Square, and which was then in the lane immediately to the left of Mr. Chand. These two vehicles were the first in their respective lanes of traffic stopped at the lights, although there were other vehicles stopped behind them. Once the lights changed colour, the Camry and the taxi drove together into Flinders Street, with the Camry a little ahead of the taxi. Once in Flinders Street, the Camry was in lane three and the taxi in lane four. According to Mr. Chand, the Camry slowed, so that Mr. Chand took his foot off the accelerator; Mr. Chand then saw a pedestrian, now identified as Mr. Page, and he allowed Mr. Page to cross lane four ahead of his taxi, and reach the median strip. At that time the front of Mr. Chand's taxi was about level with the rear wheels of the Camry, and Mr. Chand saw the appellant for the first time, running, just in front of the Camry and in lane three. He braked sharply, but hit the appellant. Mr. Chand said that the Camry later stopped just to the south of the point of impact, but then left the scene. 43 On the appellant's case, both at trial and on appeal, there was no Camry, or indeed, any other moving vehicle in lane three at about the time of the accident, so that, had Mr. Chand been keeping a proper lookout, he should have seen the appellant in sufficient time to avoid colliding with him. The appellant also submitted that Sperling, J. erred in accepting Mr. Chand's evidence; and in the course of submissions, the appellant pointed to the difference in his Honour's approach, rejecting the evidence of Mr. Page, in large measure because of inconsistencies between his evidence and his prior statements, whilst accepting the evidence of Mr. Chand, notwithstanding inconsistencies between his evidence and his prior statements. 44 There were three passengers in the taxi, Mr. Cassamento who was in the front seat, and Messrs. Walsh and Pizzimato, who were in the back seat. They had been talking amongst themselves rather than concentrating on the traffic, until about the moment of impact. Each of the three denied that the taxi was speeding, as Mr. Page had asserted, and each gave evidence denying some of the other matters which Mr. Page had asserted, the detail of which is no longer relevant. In brief, neither back-seat passenger noticed anything relevant until the taxi started to skid to a halt, and only Mr. Cassamento saw the appellant, who was then "running across in front of the taxi", Mr. Cassamento thought about ten metres away, just off to the left of the taxi and "probably" in lane three. None of the three passengers noticed whether there were any vehicles stationary in lane two. Mr. Walsh was asked whether he had noticed whether there was a taxi parked outside the club, and whether he noticed a blue Camry parked nearby, and he said he did not. He was not asked whether there was a blue Camry, or any other vehicle, moving in lane three at about the time of the accident. Mr. Page said that he did not see a blue Camry parked on the roadway after the collision, or indeed that night, but he remembered stopping for the red light at Taylor Square, and being first in the line of traffic there. However, he did not remember if there were any other vehicles in lane three as the taxi went along Flinders Street, nor whether there were any vehicles parked in lane two. Mr. Cassamento did not remember any moving vehicles, nor whether there were any vehicles parked outside the Club. He saw the appellant before the accident, but not Mr. Page. 45 Critically for present purposes, none of these witnesses really said anything significant about the blue Camry. Certainly none of them denied that there was a Camry present, moving along Flinders Street more or less in company with Mr. Chand's taxi. 46 The appellant submitted to Sperling J. that Mr. Chand's evidence concerning the presence of the Camry should be rejected altogether: Mr. Chand had made a statement to a police officer, recorded in the latter's notebook and read back to Mr. Chand, who signed the notebook as correct; and there was no mention of the Camry in that statement. Challenged in cross-examination about this, Mr. Chand said that there was nothing wrong with what the constable wrote, or read out; and a little later had said that he thought that at that stage, the constable was asking him questions, which he answered, as distinct from the constable asking him for a comprehensive statement; and he explained, by reference to some earlier accident, that "you have to go to the police station and fill out a statement". Sperling J. accepted this explanation. His Honour also said:-

Mr. Chand impressed me as a witness who was doing his conscientious best to give accurate evidence to the best of his recollection. If anything, as I have said, he may have been over zealous in this respect. I accept his sworn account of what occurred and, in particular, his evidence as to the presence of the Camry and (in broad terms) its position on the roadway, and his evidence that he did not see either of the pedestrians until they were well into the roadway and, respectively, where he said in his sworn evidence hefirst saw them.

47 Given this finding, based as it must have been upon his Honour's observations of Mr. Chand in the witness box, I do not consider that this Court can legitimately proceed except upon the basis that Mr. Chand is to be accepted as a truthful witness. We can of course examine the reliability of his evidence, by reference to the other evidence in the case, consistently with such well-known authorities as DEVRIES v. AUSTRALIAN NATIONAL RAILWAYS COMMISSION (1993) 177 CLR 472 at 479. It does not seem to me that anything that was said in STATE RAIL AUTHORITY OF NEW SOUTH WALES v EARTHLINE CONSTRUCTIONS PTY LTD (1999) 73 ALJR 306 affects this view. In particular, and limiting myself to the circumstances of this particular case, it would be legitimate for this Court to look at the other evidence in the case with a view to testing the reliability of the evidence of Mr. Chand, where that other evidence satisfies the criteria described in Devries. 48 Dealing then with question of the supposed presence of the Camry, Mr. Chand's evidence that there was such a vehicle present, and moving generally as he described it, is not contradicted, except by the evidence of Mr. Page. It is challenged, as distinct from being contradicted, by reference to the circumstance that Mr. Chand did not mention the Camry to the police officer who asked him questions at the scene, and it is not to be overlooked that none of the passengers in the taxi noticed it. 49 Additionally, Mr. Chand said in chief that, approaching the scene of the accident, he noticed that the driver of the Camry touched his brakes, so that he (Mr. Chand) let go of the accelerator; he saw Mr. Page running and "sort of slowed down" to allow Mr. Page to reach to median strip; and then he saw the appellant emerge from in front of the Camry. In cross-examination it was put to him that he had seen the brake lights of the Camry come on, and he agreed. However, in re-examination he said that he had not seen the brake lights on the Camry, because he was then too close for that. 50 Sperling J. said of this:-

“In this respect, I think Mr. Chand was sitting in judgment on his own recollection and may not have been being fair to himself. It seems to me from his description of the relative position of the vehicles that he might well have been able to see at least the left hand rear brake light of the Camry. He might also have seen the glow of the Camry's brake lights, even if he could not see either of them directly. There might also have been a brake light mounted in the centre of the vehicle near the rear windscreen as is now commonplace and was not uncommon in 1992. I do not think that the evidence given in re-examination should be seen as detracting seriously from Mr. Chand's credibility if that is the only significant matter to be put against him, as I think it is.

It should also be said that the easing up in response to the driver of the Camry touching his brakes, and accelerating again, was detail that gave me confidence in Mr. Chand's recollection for detail and in his veracity.”

51 The appellant criticised this passage as containing elements of speculation rather than inference, and going beyond the evidence. Whilst I think this criticism should be accepted, I do not consider that we would be justified in overturning the finding of fact that the Camry on the roadway generally as Mr. Chand described it, or that we should go further, and discard the evidence of Mr. Chand altogether, as being unreliable. 52 The appellant also criticised Sperling J's finding that Mr. Chand was driving at a speed of the order of 6O kph. The appellant focussed upon the statement recorded in the police notebook signed by Mr. Chand. Certainly, if one focuses upon this piece of evidence alone, there is room for thinking that his Honour's finding might be open to attack. But on the other hand, his Honour's finding as to Mr. Chand's speed is supported by the evidence of the three passengers in the taxi, and by the scientific evidence, based upon the length of the skid marks left by the taxi. That is, the finding as to the taxi's speed is unassailable on appeal. 53 There remains the question whether the finding that Mr. Chand had not been shown to be negligent should be overturned, on the basis that, even if the Camry was present, generally as Mr. Chand describes it, Mr. Chand should have seen the appellant in sufficient time to take evasive action, or whether, having seen Mr. Page, he should have taken evasive action, so as to avoid colliding with the appellant. On Sperling, J's findings of fact, Mr. Chand is not to be criticised for failing to observe the two pedestrians before they commenced to start to run across lanes three and four, that is, they were, practically speaking, in a position where he could not have been expected to notice them, as they walked between the parked vehicles in lane one and in front of the stationary taxi in lane two. The expert evidence showed that a person jogging moves at a speed of about 2.5-3 metres per second. The two pedestrians were running rather than jogging, although it seems reasonable to infer that they were not running fast, because, more likely than not, they were intoxicated. His Honour accepted that the reasonable reaction time of a person such as Mr. Chand was about one and a half seconds, that is, the time between his observing a pedestrian running in front of him and his commencing to brake. The taxi left two skid marks, one seventeen metres long and the other twenty metres long. Each lane was 2.8 or 2.9 metres wide. His Honour found that the taxi's speed did not exceed 6O kph or 16.7 mps. The taxi was still moving at the moment of impact with the appellant, and the evidence does not permit one to be at all precise as to its speed then, or just how much further the taxi skidded after impact, and before stopping. However, a consideration of these figures leads to the conclusion that Mr. Chand probably commenced to apply the brakes at a time that was reasonable in the circumstances, given the conclusion that the Camry was where Mr. Chand described it, and given the circumstances, not in dispute, that the two pedestrians started to run as they entered lane three. 54 In all the circumstances, I conclude that the appeal should be dismissed with costs. 55 Since writing the above I have had the benefit of reading the draft judgments of Beazley and Stein JJA. I agree with the remarks of Stein JA.

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