Moran v Nominal Defendant (Queensland)

[1997] QCA 298

COURT OF APPEAL

[1997] QCA 298

DAVIES JA
McPHERSON JA
DEMACK J

Appeal No 6697 of 1996

PETER JOSEPH MORAN  Appellant (Plaintiff)

and

THE NOMINAL DEFENDANT
(QUEENSLAND)  Respondent (Defendant)

BRISBANE

..DATE 26/06/97

JUDGMENT

DAVIES JA:  The appellant, who was the plaintiff in the action below, appeals against a judgment of the Supreme Court dismissing his action for damages for personal injuries and ordering him to pay certain costs.  The Nominal Defendant (Queensland) was the defendant in the action.

The appellant was undoubtedly injured when his prime mover and semi-trailer overturned on the Bruce Highway between Ingham and Cardwell at about 11 o'clock at night on 15 May 1988.  He was travelling in a northerly direction on a straight section of roadway which, over a distance of about 400 metres in front of him, curved to the right at an angle of about 30 degrees.  He was travelling at about 90 miles an hour and had slowed down slightly a short while prior to that point.  According to the evidence, which the learned trial Judge accepted, the appellant's vehicle did not take the curve to the right but continued straight ahead off the roadway and then overturned to its left.

The appellant's case at trial was that a motor vehicle travelling in the opposite direction travelled onto its incorrect side of the roadway as it came around the curve forcing the appellant to deviate to his left thereby causing his vehicle to overturn.  He was not sure, he said, whether the other vehicle collided with the side of his vehicle or not.

Notwithstanding Mr White's able submission to the contrary, in my view, when Her Honour said that the appellant had not demonstrated to the civil standard that the driver of an unidentified motor vehicle drove that vehicle negligently on the highway such as to cause the accident which gave rise to his injuries she was saying, in the light of what she had said previously, that she disbelieved the plaintiff's version of what occurred and it is, in effect, against that finding which was a finding of credibility, that the appellant, in effect, appeals.

It is unnecessary to repeat here what has been said so often in the past about the reluctance which appellate Courts must have to set aside findings of credibility; such findings must stand it has often been said unless it can be shown that the trial Judge has failed to use or culpably misused the advantage which it is said a trial Judge has in seeing and hearing witnesses, or if the trial Judge has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

In this case the only evidence that there was another vehicle involved at all was that of the appellant himself.  No marks on his prime-mover or trailer indicated that a collision had occurred, nor were there any marks or debris on the roadway to indicate a collision.  No one else saw any other vehicle.

There was a conflict of evidence between, on the one hand, two observers at the scene of the accident shortly afterwards, and an engineer who had observed photographs of the scene and who had also inspected the scene, although it must be said after some aspects of the roadway had been changed, and on the other, an engineer who had not inspected the scene but who had viewed only photographs of it.  That conflict being as to whether or not the appellant's vehicle continued straight ahead instead of following the curve in the roadway.

Her Honour accepted the former evidence which was to the effect that he had continued straight ahead because of the advantage which the former witnesses had of seeing the actual layout of the roadway rather than relying on the secondary evidence of photographs which, it is common knowledge, can often show a slightly misleading picture.  That seems to me to be a sensible way of resolving that conflict, there being no other glaringly obvious way of resolving it. 

In any event, however, the resolution of that conflict does not, in my view, loom large in the rejection of the appellant's account of events.  The most that can be said of it is that it tends to support the view that either through tiredness or simply inattention rather than some sudden emergency, the appellant's vehicle left the roadway.  But if he went more or less straight ahead, that is, if he didn't steer sufficiently to his right to take the curve, that view is equally supported.  In other words, it does not seem to me to matter a great deal whether, at the commencement of that curve, the appellant went straight ahead or whether he went more or less straight ahead rather than, on the other hand, executing some manoeuvre which indicated some sudden movement to his right rather than a continual movement in much the same direction.

The appellant gave a number of versions of the events of that night at different times after the accident; immediately after the accident to a Mr Matthews, another truck driver who picked him up, to some staff at the Ingham Hospital, and later versions to the police to his employer, to the Workers' Compensation Board and to various doctors.  There were inconsistencies in those versions which, on one view, could be attributed to dishonesty, but on another, to factors not inconsistent with honest recollection.  Her Honour, it is plain, would not have rejected his version given at the trial merely on the basis of these inconsistencies.

It also appears from the evidence of a number of medical practitioners after viewing video films of him which had been secretly recorded, that he had grossly exaggerated a number of his disabilities.  Some of this exaggeration has been evidenced to some of the doctors even without that evidence, and at trial, the appellant admitted that he exaggerated some of his disabilities because, in effect, he did not trust doctors from the other side.  To some extent, his attitude is possibly explicable by his suspicious nature attributable, to some extent, to his unfortunate childhood.  Again, it is plain that this alone would not have been sufficient, even together with the inconsistencies to which I have already referred, to cause Her Honour to disbelieve the appellant as to the circumstances of the accident.

More serious in Her Honour's view, and rightly so in my view, was the appellant's failure to mention and indeed to deny when questioned that, between 1993 and 1995, he engaged in truck driving even though, as he ultimately said, it was only to test himself as to whether he could perform this work.  Even more serious than this in Her Honour's view, and again rightly so in mine, was what Her Honour described as his disingenuous explanation to this Court in an affidavit as to how he came to be attending at Sellar's Concrete Plant on 27 March 1995, and his less than frank evidence in that regard when giving evidence in the trial before Her Honour.

The appellant had succeeded at the previous trial, but this Court set aside that judgment and granted a new trial on the basis of video evidence that, immediately after judgment, he appeared to be working at Sellar's Concrete Plant when, on the evidence which the Court had accepted at trial, he was incapable of doing any such work.

There can be no doubt that his affidavit filed in this Court on the previous appeal was dishonest and that his evidence before Her Honour on this matter was also dishonest.  As Her Honour rightly said, it revealed the appellant as a man who was prepared on oath to tell a lie for his own benefit.  The difficulty which Her Honour then had was to determine whether the appellant's untruthfulness began only after he sustained his undoubted injuries and disabilities or whether it commenced earlier.  In the end, after seeing and hearing the appellant and the other witnesses to whom I have in general referred, Her Honour concluded that she couldn't be satisfied that the appellant was telling the truth about the circumstances of the accident.

Having regard to the peculiar advantage which, it has been said on so many occasions, a trial Judge has in assessing matters of credibility, no basis has been shown here for showing that Her Honour's assessment was against the probabilities in this case.  In my opinion, therefore, the appeal must be dismissed.

McPHERSON JA:  I agree that the appeal should be dismissed and with the reasons of Mr Justice Davies.

DEMACK J:  I agree.

DAVIES JA:  The appeal is dismissed.

...

DAVIES JA:  With costs.

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