Kabadanis, P. v Panagiotou, N

[1980] FCA 97

Re: PETER KABADANIS
And: NICK PANAGIOTOU (1980) 47 FLR 221
No. F.C. 4 of 1978
Evidence - Appeal
(1980) 1 ANZ Insurance Cases 60-409

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn(1), Franki(1) and Keely(1) JJ.

CATCHWORDS

Evidence - application for new trial - weight of evidence - circumstantial evidence outweighing oral evidence - significance of failure to call witnesses - whether possibly inadmissible evidence influenced result - admission of evidence contradicting evidence of party - conduct of case by statutory insurer contrary to wishes of insured.

Appeal - Action for damages for personal injuries - New trial sought by plaintiff appellant - Inadmissible evidence - Trial judge allegedly admitted inadmissible evidence - Whether inadmissible material influenced judge's decision - Whether order for new trial appropriate.

Evidence - Interrogatories - Answers to - Whether counsel may lead evidence contradicting his client's answers to interrogatories.

HEADNOTE

The appellant's action for damages for personal injuries was dismissed by the trial judge. The appeal was based principally on the grounds that the trial judge had erroneously taken into account inadmissible evidence and that he had erred in allowing the respondent's counsel to put the case contrary to the respondent's sworn answers to interrogatories. The appellant sought a new trial.

Held: Per curiam - The appeal should be dismissed since: (1) The trial judge would have come to precisely the same conclusion whether or not certain allegedly inadmissible evidence had been taken into account and therefore a new trial would not be ordered.

Stokes v. The Queen (1960), 105 CLR 279; Vocisano v. Vocisano (1974), 130 CLR 267, applied.

Warren v. Coombes (1979), 53 ALJR 293, distinguished.

Balenzuela v. De Gail (1959), 101 CLR 226; Dairy Farmers Co-operative Milk Co. Ltd. v. Acquilina (1963), 109 CLR 458, referred to.
(2) Answers to interrogatories are evidence not pleadings. It is therefore open to counsel to present evidence which contradicts his client's answers to interrogatories.

King v. Wilkinson, (1957) SR (NSW) 444, followed.

HEARING

Canberra, 1980, June 30. #DATE 30:6:1980

APPEAL.

Appeal from a judgment of the Supreme Court of the Australian Capital Territory.

B. J. Salmon, for the appellant.

T. O'L. Reynolds Q.C. and C. P. Crittle, for the respondent.

Solicitors for the appellant: Merity, Colquhoun & Constance.

Solicitors for the respondent: Abbott, Tout, Creer & Wilkinson.

E. F. FROHLICH

ORDER

THE COURT ORDERS THAT: the appeal is dismissed with costs.

Order accordingly.

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory dated 23 February 1978, dismissing the action by the plaintiff which was a claim for damages for personal injuries said to have been caused by the negligence of the defendant. The plaintiff was a passenger in a motor vehicle driven by the defendant. The plaintiff's allegation was that the negligent driving of the motor vehicle by the defendant caused the discharge of a loaded shotgun which was in the vehicle, and thus severely injured the plaintiff. The defence was a traverse of all the allegations in the statement of claim, and in particular a denial that the plaintiff's injuries arose out of the use of a motor vehicle. Two other defences were included, namely that the plaintiff and the defendant were at all material times engaged in a joint illegal enterprise, and contributory negligence. Neither of these two defences was pressed at the trial. As to the alleged joint illegal enterprise the trial judge said:

"In my view there was no evidence to support it and certainly in the way the matter developed and having regard to the paucity of evidence in support of it, the allegation should not have been made."

At the trial the main thrust of the defence was an attempt to show that the accident did not happen in the manner alleged by the plaintiff, but that the shotgun was discharged outside the motor vehicle. This defence succeeded. The learned trial judge gave the following reason for his decision in favour of the defendant:

". . . the case for the defendant is a compelling one in the sense that it has left me without any actual persuasion that the plaintiff suffered the injury whilst he was in the motor-car."

As the plaintiff's case rested entirely on his allegation that the gun was discharged accidentally as a result of the motion of the car over either a small mound or a depression in the road, this finding by the learned trial judge was necessarily decisive; there was no possibility of founding the plaintiff's case on any other allegation of negligence.

The course of the trial was unusual. The defendant, having sworn an affidavit of answers to interrogatories in which he substantially supported the plaintiff's allegations, gave oral evidence at the trial to the same effect. The learned trial judge's conclusion that he was unpersuaded of the truth of the case for the plaintiff necessarily entailed a total rejection of the evidence of both the plaintiff and the defendant about the manner in which the plaintiff's injuries were sustained. Moreover there was no alternative account or explanation of the plaintiff's injuries given in evidence. The fact that the learned trial judge did not accept the story told by the plaintiff and the defendant was not a result of the plausibility of another story.

It is convenient at this point to repeat a passage from the reasons for judgment of the learned trial judge, in which he summarized the evidence which led him to his conclusion.

"The thrust of the defendant's case was expert evidence which was designed to establish three propositions. The first proposition was that the shotgun in the condition it was on the day following the accident would not have discharged by reason of any bump which the car encountered on the road. The second proposition was that if the injury which the plaintiff suffered had been received while he was seated on the back seat of the car there must necessarily have been some damage to the interior of the car. The third proposition was that the gun was discharged at a range of from 6 to 9 feet from the plaintiff's leg."

The learned trial judge examined the evidence tending to support these three propositions, and came to the following conclusions. On the question whether the gun would have been discharged by any bump which the car encountered on the road, he said:

". . . while it was not physically impossible that the gun would discharge in the circumstances as alleged by the plaintiff, it was nevertheless distinctly improbable that it would do so."

The evidence was that there was, after the accident, no damage to the interior of the car. On the question whether the gun could have discharged in the car without damaging the interior, he said:

". . . it seems to me that it was virtually impossible for the gun to discharge in the back without causing obvious damage in the rear of the car or without spattering fragments of human flesh and bone about in the same area."

On the question of the distance of the muzzle of the gun from the plaintiff's leg at the time of discharge, the learned trial judge considered uncontradicted expert evidence as to the width of the cone of fire from a shotgun of this kind, in relation to the distance from the muzzle. He also considered the evidence of the orthopaedic surgeon who first treated the plaintiff for his injury, that at the time he first saw the plaintiff, which was shortly after the injury occurred, two or three inches of the plaintiff's tibia and fibula were shot away. These facts led to the inference that the distance from the muzzle to the plaintiff's leg at the time of discharge was between 6 and 9 feet. The evidence of the plaintiff was that the muzzle was less than 1 foot from the plaintiff's leg at the time. The learned trial judge said:

"I do not find this aspect of the evidence, of the expert evidence, as compelling as the previous two aspects which I have just considered. It is consistent with them, however, and adds strength to the view that the shooting could not have taken place in the car."

The learned judge then came to a crucial part of his reasons for judgment. He turned to the direct evidence of the plaintiff and the defendant and said:

"I did not detect anything in their demeanour from which I could reliably conclude that they were not telling the truth. The plaintiff was undoubtedly injured by a shotgun discharge and the police confirm that there was a mound in the road such as the plaintiff had described it and in the area in which he said it was."

Then followed a sentence which is the key to the learned judge's finding:

"If the only evidence to contradict the sworn evidence of both the plaintiff and the defendant is circumstantial evidence which depends for its force largely on the opinion of experts and which is proffered by an insurer contrary to the instructions of the insured, then in order to prevail I think that evidence would need to be of a most compelling character."

We draw attention to the word "compelling". The learned judge then summarized the conclusions to which his considerations of the circumstantial evidence had already led him; we have already referred to these. He went on as follows:

"The plaintiff has a strong motive for giving an account of the affair which will result in his obtaining substantial damages. If the defendant was responsible for the injury by reason of a negligent act on his part, he too has a strong motive for giving an account of the affair which will result in the plaintiff obtaining substantial damages, but not at his expense.

The plaintiff has not called two persons who must fairly be regarded as in his camp and who must have been able to corroborate his version of the affair. If the decision not to call such witnesses was made on tactical grounds in the hope or expectation that the defendant would call them, and thereby enable plaintiff's counsel to cross-examine them, then it seems to me that the plaintiff, who has the onus of proof, takes this course at his own risk.

If the decision was made for other reasons, then it must stand as a weighty criticism of the plaintiff's case as a whole. The corresponding criticism made by the plaintiff that the defendant did not call the witnesses either and is therefore tarred with the same brush does not seem to me to carry the same force. As I have said the two uncalled witnesses were in the plaintiff's camp and the plaintiff has the onus of proof."

The next words in the judgment are those already quoted, expressing the learned judge's finding - strictly speaking, his absence of finding:

"After much consideration of the evidence in this matter, I have come to the view that the case for the defendant is a compelling one in the sense that it has left me without any actual persuasion that the plaintiff suffered the injury whilst he was in the motor-car."

Once again, we draw attention to the word "compelling".

Counsel for the appellant made a thorough and weighty attack on the learned trial judge's finding that he was unpersuaded of the truth of the plaintiff's story. He attacked it not only on the ground that the trial judge gave weight to inadmissible evidence, but also on the ground that his conclusion was contrary to the weight of the evidence. In the forefront of his argument he put the proposition that the conclusion of the learned trial judge, quoted above, that he was left without any persuasion of the truth of the plaintiff's story, implied that the trial judge regarded the case as a finely balanced one on the facts; that he decided it on the failure of the plaintiff, by a narrow margin, to sustain an onus of proof.

If the judgment of the learned trial judge were open to this interpretation, we think that some of the arguments propounded by counsel for the appellant might have had more weight. No doubt it is correct that in a case in which the balance of probability is weighed down only very slightly in favour of one side or the other, a relatively small piece of evidence wrongfully admitted or rejected, or shown to have been overlooked or misunderstood by the judge, must be considered to have a relatively large potential effect on the result, and thus be a persuasive argument in favour of the case for the appellant. But, with respect to counsel, we think that his contention that the case was one in which the trial judge found the balance of probability weighed down only very slightly against the plaintiff cannot be sustained. The words of the learned trial judge do not support it. The case was not one in which the trial judge, after considering the story told by the plaintiff, and the story told by the defendant, found that the defendant's story by a very small margin was the more probable. On the contrary, he made it clear that his conclusion was one to which he was compelled by the evidence, though it was reached by an unusual method: the circumstantial evidence made it impossible to believe the direct evidence supporting the plaintiff's case. In other words, the case was not one in which the trial judge found for the defendant upon finely balanced considerations of opposing probability, but rather one in which the compelling evidence led for the defence destroyed the credibility of the story told by the plaintiff. In our opinion, therefore, a major premise upon which counsel for the appellant founded much of his argument was incorrect.

The first ground of appeal was that the trial judge had erroneously taken into account evidence received on the defendant's application for a warrant for the arrest of one Saris. Counsel for the appellant relied strongly on passages in the earlier part of the judgment which, he said, showed that the learned judge relied on inadmissible evidence. The defendant's solicitors had issued a subpoena ad test and served it on one Saris, who was the plaintiff's brother-in-law and a passenger in the car at the time of the alleged accident. Saris did not appear in answer to the subpoena, and in the course of an application to the learned judge for a bench warrant, evidence was given tending to show that Saris had left the jurisdiction twice during the trial. This was mentioned by the learned judge in the early part of his judgment in giving an account of the plaintiff's evidence, in which the plaintiff said that Saris was one of his fellow-passengers. A further mention of the same matter came later in the judgment, at the end of the learned judge's consideration of the case for the plaintiff. Having mentioned that another passenger in the car, Apostolakis, a friend of the plaintiff, had been present in court during part of the hearing but had not been called by the plaintiff, the learned judge said, in relation to Saris:

"Mr Saris is the brother-in-law of the plaintiff. According to the plaintiff they are not on bad terms. I think it is most unlikely that if the plaintiff had wished to call Mr Saris that Mr Saris would have gone out of the jurisdiction on two occasions during the course of the trial."

Counsel for the appellant attacked these two references to Saris' alleged departure from the jurisdiction on the ground that the evidence supporting it was given in the course of an application for a bench warrant, which was not part of the trial, but a separate proceeding; the evidence was thus inadmissible against the plaintiff.

But the argument is unconvincing, because the reasons for judgment show two things. In the first place, the matter already referred to, namely the impossibility of giving credence to the oral testimony of the plaintiff and the defendant in the face of the uncontradicted expert and circumstantial evidence, was the central factor in the learned judge's decision. The failure to call Apostolakis and Saris was ancillary. In the second place, as is shown by the substantial passage we have earlier quoted from the reasons for judgment, it was not the alleged absence of Saris from the jurisdiction with which the learned judge was concerned, but the fact that the plaintiff did not call either Apostolakis or Saris. As the learned judge said, such failure was explicable on either a tactical or a substantive ground: if the former was the true explanation, it did nothing to help the plaintiff's case; if the latter, it stood as a weighty criticism of the plaintiff's case as a whole. Saris' alleged absence was not a substantial factor.

We think that the words of Barwick C.J. (with whom Stephen and Jacobs JJ. agreed) in Vocisano v. Vocisano (1974) 130 C.L.R. 267 at p.274 are precisely in point here:

". . . in the case of a trial by a judge, we have the reasons he has expressed for giving his verdict on the facts. Consequently, it is necessary to scan those reasons carefully to ensure that the inadmissible material has not entered in any substantial degree into the conclusion which the trial judge has formed. In my opinion, before a new trial is ordered in a case where the verdict is in accordance with the evidence, it should be seen that the inadmissible matter has been used by the judge in reaching his verdict . . ."

and again, at p.275:

"His Honour did not believe (the plaintiff). Unless it can be seen that the inadmissible material influenced that conclusion, there is no ground consistently with what I have so far written for ordering a new trial. After considering the reasons of the trial judge, I have come to the conclusion that they did not."

In the main counsel for the appellant sought a new trial. We consider that the judgment to which we have just referred, points out that a new trial will not be ordered merely because some inadmissible material has been admitted, unless this material has entered to a substantial degree into the conclusion which the trial judge has formed. In Stokes v. the Queen (1960) 105 C.L.R. 279 at pp.284-285, Dixon C.J., Fullagar and Kitto JJ, in a joint judgment, set out the general rule applicable to cases where a new trial was being sought from a verdict of a jury. At pp.284-285 the Court said "In the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like, occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced a result, a new trial need not be ordered". See also Balenzuela v. De Gail (1959) 101 C.L.R. 226 and Dairy Farmers Co-operative Milk Co. Ltd. v. Acquilina (1963) 109 C.L.R. 458. We consider that this general rule is not affected by anything in s.28 of the Federal Court of Australia Act 1976.

Section 28(l)(f) of that Act provides that ". . . the Court may in the exercise of its appellate jurisdiction grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial".

It is clear an appellate court should be less willing to grant a new trial where the application is based on the wrongful admission of evidence in proceedings before a judge sitting alone than in a case where a new trial is sought from the verdict of a jury. An appellate court has the benefit of the trial judge's reasons. We consider that the evidence upon which the first ground of appeal is based could not reasonably be supposed to have influenced the result. We are satisfied that the learned trial judge would have come to precisely the same conclusion whether or not the evidence, the subject of the first ground of appeal, had been taken into account.

In any event, it is by no means clear that this evidence was not properly before the learned trial judge as part of the evidence upon which he could base his judgment, but, because of the view we take even if it was wrongly treated as being before him, it is unnecessary to explore this aspect any further.

In the course of the argument before us, there was some discussion of the High Court's decision in Warren v. Coombes (1979) 23 A.L.R. 405, as having a bearing on the attitude we should adopt to the findings of fact in this appeal. In our opinion that case is not in point. It relates to the power of an appeal court to draw inferences from undisputed facts or from the trial judge's findings on disputed facts. See generally Annand and Thompson Pty. Ltd. v. Trade Practices Commission (1979) 25 A.L.R. 91 at pp.96-97, 110 and 114. In this appeal we are not asked to exercise any such power, but to make a finding other than that which the trial judge made on disputed facts. In this task we can get guidance from some authorities, but not from Warren v. Coombes.

The second, third and fourth grounds of appeal, which were all related, were expressed as follows:

"2. That His Honour the Learned Trial judge erred in allowing the respondent's (defendant's) legal representatives to put the case differently from and contrary to the defendant's sworn Answers to Interrogatories.

3. That His Honour the Learned Trial judge erred in drawing inferences unfavourable to the plaintiff from the plaintiff's failure to call evidence corroborative to his case when the plaintiff had tendered the defendant's sworn Answers to Interrogatories verifying the case of the plaintiff.

4. The trial miscarried by reason of the case for the defendant not being put properly as the Counsel and the solicitors for the defendant were in reality appearing in the interest of the third party namely N.R.M.A. Insurance Limited."

The reference to "the third party" is wrong; no third party was ever joined. All these grounds are based on what the appellant contended to be the learned trial judge's erroneous decision to allow counsel for the defendant to conduct his case in a manner which entailed attacking the defendant's answers to interrogatories as false. In our view this decision was not at all erroneous.

In the first place, it is clear that answers to interrogatories have no other status than that of evidence. Such answers are not pleadings. It is open to counsel to present, if he wishes, evidence which is inconsistent with, or contradicts, evidence by his client (King v. Wilkinson (1957) 57 S.R. (N.S.W.) 444) whether the evidence in question is in chief or in cross-examination; and answers to interrogatories cannot be in a different category. Counsel made a valiant effort to distinguish King v. Wilkinson on the ground that the discrepancy in that case between the defendant's own evidence, and the other evidence led by his counsel, was merely one of degree. In fact, in that case the defendant swore that he had been sober at the material time, and the evidence of the other witnesses called by his counsel was that the defendant had been drunk. In this case, counsel contended the result should be otherwise because there was not merely a difference of emphasis, but a total contradiction, between the answers to interrogatories, and the effect of the other evidence. In our opinion this is an untenable distinction.

Counsel contended, further, that in this case the effect of admitting evidence tending to show the falsity of the defendant's answers to interrogatories was to put an undue or improper significance on the plaintiff's failure to call evidence corroborative of his story. It was said that the plaintiff's counsel, having in his favour the defendant's answers to interrogatories, was entitled to rely on the plaintiff's and the defendant's oral evidence, and therefore that the fact that neither of the other two passengers was called should have been disregarded as insignificant. At this point, of course, counsel stressed the contention which we have already rejected as incorrect: that the trial judge's finding was based on a fine balance of probabilities.

We have already given reasons for rejecting this latter argument, but we also reject the prior contention which it was said to support - the argument that the plaintiff was entitled to rely on the defendant's answers to interrogatories and oral evidence to justify not calling the two passengers. Where available corroborative evidence is not called, the apparent strength of the evidence to be corroborated should not of itself deter the tribunal of fact from having greater confidence in drawing inferences from evidence called by the other side. However strongly a body of factual evidence appears to support a party's case, the facts that two eye-witnesses were not called, and that no explanation was proffered for not calling them, must tend in some degree to lessen the weight of that body of evidence.

In this case, the appellant's argument is made even weaker by the fact that when the copy of the defendant's affidavit of answers to interrogatories was furnished to the plaintiff's solicitors, a covering letter expressly stated that the defendant's solicitors did not accept the truth of the answers. Counsel contended that this fact was immaterial, but in our opinion it tends to increase the confidence which the judge could have in drawing inferences from the evidence called by the defence, since the letter must have put the plaintiff's solicitors on notice that the truth of the answers would be put in issue at the trial. Counsel also contended that the letter should be ignored because it was not informative - i.e. it merely challenged the truth of the answers without suggesting what the real truth was; but this does not, in our opinion affect the inescapable conclusion that the letter tended to increase the need for corroborative evidence and thus add weight to its unexplained absence.

A further development of the same point that evidence should not have been admitted to contradict the defendant's answers to interrogatories was provided by the fourth ground of appeal, quoted above. Counsel contended that at the trial the statutory insurer of the defendant was seen to be pursuing a course which was not in the defendant's interests. As the defendant's counsel and solicitors were concerned to present an account of the facts (i.e. that the accident happened outside the motor-car) which would not entail the liability of the insurer under the policy, it was said that the defendant and the insurer should have been separate parties, or that the insurer should have repudiated liability under the policy, left the defendant to fend for himself in this action, and thus allowed the issue of its liability to be tried in other proceedings. It may be that either of these courses, if they had been adopted, would have given the plaintiff a better chance of succeeding on his version of the facts, but in our opinion the argument is untenable as a ground of attack on the judgment of the learned trial judge. The shortest answer to it is that it is not for a plaintiff to complain that the defendant's interests are not being advanced. In fact, of course, the defendant was held not liable to the plaintiff, and the aim of the course adopted by his counsel was to achieve this result. Furthermore, the whole scheme of statutory liability insurance under the Motor Traffic Ordinance, as under similar legislation elsewhere in Australia, involves the right of the insurer to take control of proceedings in which the liability of the insured is in issue; see s.68 of the Motor Traffic Ordinance 1936. The defendant's instructions to his solicitors and counsel must inevitably take this right into account. There is no authority in support of the proposition that the insurer may not take control of such proceedings in order to establish any state of facts which negates the defendant's liability, even one to which the policy plainly does not apply.

We think that there is no substance in this ground of appeal, and that the course taken at the trial by the learned judge was entirely proper.

The remaining grounds of appeal all relate to certain items of circumstantial evidence and the use which the trial judge made of them; in one case, that he failed to take it into account.

The first of these items was the evidence of tests which had been conducted by experts relating to the penetrative effects of pellets from a cartridge of the same kind as that which was said to have been discharged, on pieces of animal flesh and bone. An experimental shot was fired through a shin of fresh veal, containing more flesh and more bone than in the lower leg of a human being, at a bullet trap consisting of 50 pieces of caneite, 5/8 of an inch thick, laid close together. Some of the shot penetrated the shin of veal and as far as the ninth sheet of caneite. In his judgment the learned trial judge explained that there was no evidence about the comparative resistance to shot of a human leg and a freshly killed shin of veal, but said that he found the evidence useful as giving a general idea of the penetrative powers of the shot from that kind of cartridge. Counsel for the appellant contended that the evidence of the test with the shin of veal was totally inadmissible in the absence of comparative evidence to which we have referred. We do not think there is substance in this contention. The evidence of the tests was that some shots fired at the caneite without the interposition of the animal flesh penetrated as far as the twenty-third sheet of caneite. The argument could as well be that this too was inadmissible because there was no caneite in the motor vehicle, nor any evidence as to the comparative resistance of caneite and the materials which lined the interior of the motor vehicle. In fact, his Honour used the evidence relating to the animal flesh only as a demonstration of the penetrative power of the shot, and in relation to the absence of damage to the interior of the car. This was plainly a "jury question" on which his Honour was entitled to make a sort of decision which a jury would make. Counsel conceded that he could not rely on this point by itself, but only in conjunction with the evidence as to the absence of damage to the car, and the absence of debris of flesh and bone in the car.

The next item of evidence was that which was said to suggest the possibility that the cartridge which was fired and caused the plaintiff's injury was defective in containing less than the normal amount of powder. The argument was that if this cartridge was so defective, the inferences drawn from the absence of flesh and bone and from the absence of damage to the car were unsound.

The evidence relied on to show the possibility that the cartridge was defective was that of the plaintiff himself in describing the loudness of the report, coupled with that of expert witnesses who gave evidence of the volume of sound produced by the firing of a normal cartridge of the type which, as counsel contended, was probably fired from the gun, namely "Blue Star no.3".

The plaintiff in describing how the accident happened said

"Well, I just hear the explosion - it wasn't so loud and I think my leg pain."

(The plaintiff's English was obviously imperfect.) Asked by the judge to repeat this answer, he said "No, it wasn't very loud".

An expert called for the defence to give evidence as to the possibility that the gun was discharged accidentally, was asked by the trial judge to express an opinion about the noise accompanying the discharge of the Blue Star no.3 cartridge, and he said that it made a considerable noise even outside the car, and even more inside the car; he also said that if the noise "wasn't very loud" he would deduce that the discharge was either outside the car or that "there wasn't very much charge". Another expert called by the defence gave evidence of having measured, with scientific instruments, the volume of sound produced by the discharge of Blue Star no.3 cartridges in a car in various conditions such as windows open and closed, pieces of animal flesh being present at various ranges from the muzzle. He gave the results of his tests in decibels and milliseconds but also said that "one could only possibly describe it as a very loud sharp report" and "undoubtedly a very loud sharp noise."

There was evidence from an expert in firearms and ammunition who had very long experience of the discharge of Blue Star no.3 cartridges for experimental purposes. In this long experience he had never seen such a cartridge fail, or discharge itself in a pattern other than the normal pattern.

In our opinion the weight to be given to the evidence of the plaintiff that the report was "not very loud" was negligible; the learned trial judge was entirely justified in not accepting the suggestion that the cartridge might have been defective. Counsel for the plaintiff submitted that the plaintiff's evidence in this respect should be accepted because it was so improbable that he would fabricate such a detail. The argument is not convincing. We do not think that any reliance should be placed on inference from such a subjective and necessarily imprecise statement as that the report was "not very loud". The plaintiff also said that he had never, before the event, heard a shotgun discharge.

But even if he accepted that the cartridge might have been defective, the weight of the fact, in comparison with the rest of the evidence, would still be negligible. Counsel could put it no higher than that if it were accepted that the cartridge might have been defective, the evidence of the tests relating to the penetrative power of the discharged pellets must be rejected. But this does not go to the central question of fact. On the plaintiff's own story, the discharge of the cartridge shot away a substantial portion of his leg, but did no damage whatever to the interior of the car. In our opinion any jury, apart from expert evidence, would reject as wildly improbable the hypothesis that this could be explained by the defective loading of the cartridge.

The final matter relied on by the appellant was the evidence, which was not contradicted, that some undamaged shotgun pellets were found in the car on the day after the accident. One pellet was found by a policeman on the back left-hand floor. Four more pellets were found by another policeman "on the left-hand side rear floor". The latter witness, who was a member of the police scientific section, examined all five pellets both with the naked eye and under the microscope, and found no "signs of damage or marking whatsoever" on them. In re-examination he said that he believed he could distinguish between damaged and undamaged pellets. An expert witness called for the defence said that the degree of penetration of shotgun pellets into any substance would be proportional "in some way" to the amount of powder in the cartridge; that in a normal discharge, an appreciable amount of shot is deformed before it leaves the muzzle of the gun; that the shot from a cartridge which was under-loaded with powder would be far less damaged than shot from a normal cartridge; that it was possible to fire a shotgun with damp powder, but get a poor result; and that after the discharge of a normal cartridge there could be some shot which was not deformed, because it had not been deformed in the gun and had not hit any object; that if the cartridge were loaded with less than the normal quantity of powder, the number of such undamaged shot might be more; that pellets are frequently found in association with shooters who load their own cartridges; that it was possible for some pellets to escape from the cartridge; and that it was possible for some pellets from an under-powered cartridge not to travel beyond the muzzle.

Counsel argued that the possible effect of all this evidence was ignored by the trial judge, and that if he had properly considered it, he might have been able to accept that the gun was discharged in the car. Counsel argued that the presence of the undamaged pellets in the car suggested that the shotgun was discharged in the car and that the cartridge was a defective one - i.e. under-loaded with powder; and this was consistent with the plaintiff's evidence that the report was "not very loud". Overall, counsel put the matter as one which, even if it were not in itself of great weight, should be regarded as significant in view of the trial judge's finding that the case was one of a fine balance of probabilities. But we have already said that we do not accept this interpretation of the judgment as a whole.

We do not think that the fact that the learned judge did not in his judgment mention the undamaged pellets is of any importance, because the evidence itself could not have been of any weight. There was absolutely no evidence as to how the pellets had got into the car, or as to how long they had been there. It is only speculation to say that the presence of the pellets shows that a gun was fired in the car - an inference which is contraindicated by the absence of damage in the car. We think that the learned judge was justified in regarding the undamaged pellets as a matter of no weight whatever.

For all these reasons the appeal must be dismissed with costs.