Nominal Defendant v Hall

[2001] NSWCA 376

CITATION:	Nominal Defendant v Hall [2001] NSWCA 376
FILE NUMBER(S):	CA 40087/00
HEARING DATE(S):	26 September 2001
JUDGMENT DATE:	26 October 2001
PARTIES :	Nominal Defendant - Appellant Brett Edward Hall - Respondent
JUDGMENT OF:	Sheller JA at 1; Stein JA at 2; Hodgson JA at 31

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1130/99
LOWER COURT JUDICIAL OFFICER :	Certoma ADCJ

COUNSEL:	L Morris QC/H Silvester - Appellant G B Hall QC/S Norton - Respondent
SOLICITORS:	Sparke Helmore - Appellant John D Hancock, Marrickville - Respondent
CATCHWORDS:	TORT - NEGLIGENCE - LIABILITY - motor vehicle accident - diesel oil spilt on road - EVIDENCE - conflicting evidence - credibility findings - whether a substantial body of evidence overlooked - whether had proper regard to evidence - EVIDENCE - finding of fact - critical issue - whether inference could be drawn - whether absence of reasoning - whether justice done or seen to be done - ND
LEGISLATION CITED:	N/A
CASES CITED:	Beale v Government Insurance Office (1997) 48 NSWLR 430 Devries v Australian National Railways (1992-1993) 177 CLR 472 Mifsud v Campbell (1991) 21 NSWLR 725 Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
DECISION:	1) Appeal allowed with costs. 2) Judgment for the plaintiff below be set aside. 3) New trial ordered on liability. 4) Costs of the first trial to abide the second trial. 5) The respondent to have a certificate under the Suitors' Fund Act if qualified.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40087/00
DC 1130/99

SHELLER JA

STEIN JA

HODGSON JA

Friday, 26 October 2001

NOMINAL DEFENDANT v Brett Edward HALL

The respondent was involved in a motorcycle accident on 16 October, 1997, where he fell from his motorcycle allegedly as a result of the presence of diesel oil on the roadway negligently spilt by an unidentified motor vehicle. Conflicting evidence was given at trial by a number of parties as to the presence of oil on the road. Certoma ADCJ accepted the evidence of a number of witnesses as to presence of the oil spill. None of the witnesses had been present at the time of the accident. Some of those whose evidence was accepted had attended the scene of the accident, at the earliest, some 4 hours after it occurred. The appellant appealed the finding against it on liability.

Held:

Per Stein JA ( Sheller and Hodgson JJA agreeing):

1 It could not be shown that the trial judge failed to use or palpably misused his advantage in preferring the evidence of Cottam, Taket and Nation, nor could it be shown that he acted on evidence which was inconsistent with facts incontrovertibly established. His finding of the existence of diesel oil on the roadway was not glaringly improbable.

2 The trial judge did not overlook a substantial body of evidence. His treatment of the evidence of Mr Till and Constable Wiggins was open to him and the findings about the diesel oil on the roadway stand.

3 His Honour did not address the fact that the evidence did not establish that the diesel was on the roadway at the time of the accident. There was a complete absence of reasoning as to how it was reasonable to infer the presence of the diesel oil spill back to the time of the accident, from the evidence given.

4 Whether diesel oil was present on the roadway at the time of the accident was central to the respondent’s case. There was a complete absence of consideration of this critical issue. The failure to explain the basis of a crucial finding of fact constitutes a breach of the principle that justice must not only be done but be seen to be done. Mifsud v Campbell 91991) 21 NSWLR 725, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied.

Orders:

1 Appeal allowed with costs.

2 Judgment entered for the plaintiff set aside.

3 The matter to be remitted to the District Court for a new trial on liability.

4 Costs of the first trial should abide the second trial

5 The respondent is entitled to a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal, if so qualified.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40087/00
DC 1130/99

SHELLER JA

STEIN JA

HODGSON JA

Friday, 26 October 2001

NOMINAL DEFENDANT v Brett Edward HALL
Judgment

1 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by both Stein JA and Hodgson JA. I agree with what their Honours say and the orders Stein JA proposes.

2 STEIN JA: This is an appeal by the Nominal Defendant from a finding against it on liability by Certoma ADCJ on 17 October 2000. The appeal arises out of an accident involving the respondent, Brett Edward Hall, which occurred at Wandandian on 16 October 1997. The quantum of damages was agreed during the course of the trial, thus the court is only concerned with the issue of liability.

3 The plaintiff’s claim was that he fell from his motorcycle as a result of the presence on the roadway of diesel oil negligently spilt by an unidentified motor vehicle.

4 It is necessary to examine the facts with some care. Their ascertainment is not made any easier as a result of the plaintiff’s loss of memory of the accident and the events surrounding it. He suffered a head injury in falling from his motorcycle. Moreover, no one witnessed the accident. However, the following findings were made by his Honour which can be accepted without question.

5 Shortly before 7.30 pm on 16 October 1997 the plaintiff was riding his motorcycle south on the Princes Highway at Wandandian. The weather was fine and the roadway dry. When he reached a left hand bend about 500m south of the Bewong Roadhouse, the cycle travelled across the double centre lines onto its incorrect side of the road and both the plaintiff and the cycle ended up in a culvert off the road on the northbound lane. The cycle struck two posts at the side of the road. The plaintiff was unconscious when found by a truck driver who was also travelling south. No other vehicle was involved in the accident. The area was sparsely populated with few houses in the vicinity.

6 While the plaintiff, because of his injuries, had no recollection of the accident, we do know some facts concerning him. He was 31 years of age at the time of the accident and had been riding motorcycles for 12 years. The plaintiff was riding a Harley Davidson which he had owned for four years. He was very familiar with this section of the highway and travelled it at least four times each week. The plaintiff’s job was to collect blood samples. He was apparently wearing an open helmet at the time of the accident and had a negative blood alcohol reading. He first obtained his driving licence in 1983 and had incurred some 7 speeding offences prior to the accident. All except one of those was for exceeding the speed limit by 15 to 30 kph. His Honour found that the plaintiff was not a driver prone to motor vehicle accidents having had only one accident before (in 1991). The judge made a positive finding as to the plaintiff’s credit.

7 Evidence was given at the trial by three friends of the plaintiff, by Mr Till (the truck driver who found the plaintiff at the side of the road) and a police officer.

8 Constable Wiggins arrived at the scene at 7.45 pm when it was dark and noted that an ambulance was in attendance, which took the plaintiff to hospital. He inspected the roadway and the direction from which the motorcycle came. The officer made some brief notes and a sketch in his notebook. He said in evidence that he did not see any oil or diesel spill or stain on the roadway.

9 I will return to the officer’s evidence in a moment. Mr Till, who came upon the accident, went along the roadway with the officer. They had a torch and inspected the area where the motorcycle left the road. Mr Till found some gouge or scrape marks on the road and followed them to where the motorcycle had come to rest. He did not walk further to the north or south along the highway from the gouge marks. Mr Till did not see any oil spill but his Honour found that he did not walk to the area where the spill was alleged to be located.

10 The police officer went back to the scene the following morning after he had a conversation with Mr Kevin Taket, a friend of the plaintiff. When the officer returned to the scene, he noted a dry stain on the roadway which was either oil or diesel. It measured 1.5m in length and was 15 cm wide. It was not slippery. While he said in evidence that the stain did not line up with the gouge marks left by the motorcycle, the officer amended his notes by adding ‘oil/diesel spill’ with an arrow pointing to two parallel lines, which seem to be the area of the ‘spill’ or ‘stain’ his Honour noted that, although the diagram in the notebook was not to scale, the gouge marks indicated in the northern lane lead directly from the area of the ‘spill’.

11 Evidence was given by Mr Michael Cottam, who had been a friend of the plaintiff for 10 to 12 years and shared a house with him. He worked at the Bewong Roadhouse. Mr Cottam received a telephone call from someone at the roadhouse about an accident to a motorcycle resembling the plaintiff’s. He went to the scene. It was dark and the plaintiff had already been taken to hospital and the motorcycle was being removed by a tow truck. Mr Cottam went to the roadhouse and telephoned Mr Taket. Taket came and picked him up and together they went to the hospital until about 11.30 pm or so when the plaintiff was airlifted to Sydney. Cottam and Taket returned home but at about midnight decided to return to the accident scene with a torch.

12 Mr Cottam said that he saw a line of diesel oil and scratch marks on the road. The scratch marks ran from the diesel to where the motorcycle came to rest, that being evident from a post which had been knocked out by the cycle and another damaged post. He saw no skid or tyre marks coming out of the spill but only scrape marks on the road.

13 Mr Cottam described the spill as about one foot wide and in the middle of the southbound lane. He (with Mr Taket) followed the spill up the hill and around the corner.

14 The next day Mr Cottam returned to the scene and saw that the spill went further and came out of the roadhouse.

15 Mr Taket’s evidence was to similar effect and confirmed that the spill came from the roadhouse. His description of the spill was different from that of Cottam. He said it was a line of diesel 2 to 5 inches wide and 2 to 3 feet from the side of the road. It ‘looked fresh’ and when he rubbed his hand in it he had smelt that it was diesel.

16 When he returned with Mr Cottam the next day, they had Colleen Nation with them. She was Mr Taket’s partner. Mr Taket said that he could see the diesel trail clearer and it went 200 to 300m down the road from the corner and faded off. Mr Taket later spoke to the police, hence Constable Wiggins returned to the scene.

17 Ms Colleen Nation gave evidence that she went to the accident scene on the day after the accident. She described seeing a spillage at about 1.5 feet from the side of the road and that it looked like a splattered paint spill, 10 to 15cm wide. It went as far as ‘we could see’. The spill came from the roadhouse and went to the south for a few hundred metres from the bend eventually dissipating and becoming only drops. She touched the substance and it felt oily. She saw Mr Taket touch and smell it.

18 Clearly, the evidence regarding the diesel spill was in conflict. The credit of the witnesses on both sides was challenged. His Honour noted that he had had the benefit of hearing and observing the witnesses. He said:

The plaintiff’s friends appear to be truthful witnesses with little self interest other than supporting their friend and, understandably, seeking an explanation as to why the plaintiff, whom they consider an experienced driver, fell from his motorcycle. They did not give me the impression of any collusion between them, as was evident from the differing details in their evidence including their descriptions of the spill. However, these differences in their evidence, and in particular, their descriptions of the spill, was not of such significant difference as to make me doubt their evidence or truthfulness. These differences were in my view no more than normal differences in perception and measurement by different persons.

19 Turning to the appellant’s witnesses, his Honour thought that Mr Till did not venture beyond the area of the scrape marks and this could have explained his not seeing any spill. Moreover, Mr Till was not on the lookout for any spill marks on the road, unlike the police officer when he returned to the scene the next day.

20 His Honour then turned to the officer’s evidence. Of his evidence his Honour said:

He included in the diagram of the accident scene in his notebook an “oil/diesel spill” which he had missed on the evening of the accident but later thought it important enough to include in the diagram when he discovered the spill the next day after a conversation with Taket. Although he stated that the spill was only a stain at the time he inspected it, there certainly was some sort of spill which must have been of sufficient significance to include in the diagram. And in relation to his view that the spill or stain did not line up with the gouge marks that the motorcycle left in the road, as will become evident from the report of Schnerring that will be referred to later, this may not be material since a motorcycle may travel some distance after hitting a spill before it strikes the ground.

21 The trial judge thought it not unreasonable that the officer’s recollection might now be vague, or that the investigation at the time was not as thorough as it could have been, since he had initially assumed that the rider had simply come off his motorcycle.

22 His Honour concluded:

Considering all of these matters and my observations of the witnesses, I accept the evidence of Cottam, Taket and Nation. I therefore find that there was a wet diesel spill on the roadway; and that the spill consisted of a trail located somewhere between the middle and some 50 cm from the edge of the southbound lane and extending from the roadhouse to some distance beyond the scene of the accident until it dissipated or “faded off”.

This is a classic credibility finding. It cannot be shown that the trial judge failed to use or palpably misused his advantage, or that he acted on evidence which was inconsistent with facts incontrovertibly established. Nor that his finding of the existence of diesel on the roadway was glaringly improbable or that the evidence of Cottam and Taket to that effect was glaringly improbable. ( Devries v Australian National Railways) (1992 –1993) 177 CLR 472 at 479).

23 Examining the whole of the relevant evidence with care, including that of the police officer and Mr Till, does not lead to the court intervening. The appellant contends that the trial judge overlooked a substantial body of evidence and failed to give sufficient attention to the evidence of Mr Till and Constable Wiggins. I do not see how it can be said that his Honour overlooked a substantial body of evidence. His Honour had regard to the evidence of Mr Till and the officer. He distinguished Mr Till’s evidence and it cannot be said that this was not open. He did not accept the whole of the officer’s evidence and, on the crucial issue of the extent of the diesel on the roadway, he preferred the evidence of the plaintiff’s witnesses. In doing so, it cannot be said that his Honour infringed the principles laid down in the authorities. Accordingly, his Honour’s findings upon the diesel on the roadway must stand.

24 However, there is one particularly important aspect of the evidence of the diesel spill which his Honour did not address at all. The accident occurred at 7.30 pm but the first direct observation of diesel oil on the roadway is from Messrs Cottam and Taket at about midnight. That is, some 4 ½ hours after the accident. Their evidence did not establish that the diesel was on the roadway at the time of the accident. It was possible that the oil was deposited on the roadway at any time between 7.30 pm and midnight. Could an inference be drawn from the evidence, including the observations of Cottam and Taket, that the diesel was present on the roadway at 7.30 pm and caused the plaintiff to have the accident? This is not an issue which it appears that his Honour considered. Having preferred the observations of the plaintiff’s witnesses about the existence of diesel oil on the roadway, his Honour simply found that ‘there was a wet diesel spill on the roadway’. Assuming this finding implies that the diesel was present at the time of the accident, there is a complete absence of reasoning as to how it was reasonable to infer back 4 ½ hours from midnight.

25 It was clearly a critical issue that the diesel oil be found to be on the roadway at the time of the accident at 7.30 pm. It was central to the plaintiff’s case. Mere acceptance of the plaintiff’s witnesses that the oil was there 4 ½ hours later does not provide evidence of the critical issue unless proper inferences can be drawn.

26 In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, noted that a failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. He went on to state that:

… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.

Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge… may promote a sense of grievance in the adversary and create a litigant who is not only “disappointed” but “disturbed” – to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires. (at 728) [my emphasis]

27 The principle of justice being done and being seen to be done was discussed by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. He said at 443-444:

… reasons need not necessarily be lengthy or elaborate: Ex parte Powter: Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related “… to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlook the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principles in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial… But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824…
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
Whilst it is desirable to address these elements in giving reasons for the decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations…On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence…In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.
… an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice…
Another question, which need not presently be decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.

28 Whether it could be reasonably inferred from the acceptance of Cottam and Taket that the diesel was present at midnight, that it was present at the time of the accident, required consideration. On an examination of the whole of the evidence, that inference may have been open. However, we are left with a complete absence of consideration of this critical issue. Accordingly, it is my opinion that a new trial must be ordered on the issue of liability. The Court of Appeal is not in a position to substitute a finding one way or the other.

29 It follows from my conclusion that the court does not need to address the issues in the remainder of the appeal, in particular the issues of causation and contributory negligence. Indeed, in the circumstances of a new trial, it would be preferable to make no comment.

30 Accordingly, I would propose that the appeal be allowed with costs and the judgment entered for the plaintiff set aside. A new trial is ordered on liability. The costs of the first trial should abide the second trial. If qualified, the respondent is entitled to a certificate under the Suitors’ Fund Act 1951 in respect of the costs of the appeal.

31 HODGSON JA: I agree with the orders proposed by Stein JA.

32 If the ultimate question in this case were whether or not there was a substantial quantity of diesel fuel on the road in the vicinity of the accident at about midnight on 16th October, the primary judge’s decision in favour of this proposition could not have been challenged.

33 However, the relevant issues in this case were whether or not there was such a quantity of diesel fuel on the road at about 7.30 pm on 16th October, whether or not this caused the plaintiff’s accident, and whether or not it was due to the negligence of an owner or driver or a motor vehicle in the use of operation of that vehicle.

34 The presence of a substantial quantity of diesel fuel on the road at midnight, coupled with the occurrence of the accident, could have supported an inference that the fuel was there at 7.30 pm and caused the accident. However, quite apart from the passage of 4 ½ hours, there were substantial factors against the drawing of such an inference, in particular the apparent non-detection of the fuel by Constable Wiggins and Mr. Till at 7.45 pm, and Mr Cottam’s evidence that there were no skid or tyre marks coming out of the spill (and the absence of any evidence of smearing of the spill in the direction of the crash).

35 As observed by Stein JA, the primary judge gave no consideration to whether or not the inference should be drawn. Accordingly, there would need to be a new trial, subject to the following.

36 For the appellant, it was submitted that, even if such an inference could be drawn, it could not be inferred that the presence of the spill was due to the negligence of the owner or driver of a motor vehicle. There was some evidence that it could have been caused by a driver overriding the automatic cut-off of the diesel pump at a nearby garage, and thereby putting a quantity of fuel into the cavity under the flap over the pipe leading to the fuel tank; but it was submitted for the appellant that it was inconceivable that this could have caused such an extensive spill.

37 For my part, I agree with that submission. But I think the presence of diesel fuel in the quantity and location described by the plaintiffs’ witnesses could support an inference that an owner or driver of a motor vehicle, by itself or its agent, had been negligent without the necessity of specifying the exact mechanism by which tis occurred. For that reason, in my opinion this Court cannot enter a verdict for the appellant on this basis.

38 There is some doubt in my mind as to whether both the inferences I have identified can be drawn with sufficient assurance to discharge the civil onus of proof in relation to the whole of what the plaintiff must prove (relevantly, negligence and causation of damage); but I think the better view is that this is possible, so that there must be a new trial, as proposed by Stein JA.

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