O'HARA v QBE Insurance (Aust) Limited

[2004] NSWCA 392

CITATION:	O'HARA v QBE INSURANCE (AUST) LIMITED [2004] NSWCA 392
HEARING DATE(S):	18, 19 October 2004
JUDGMENT DATE:	19 October 2004
JUDGMENT OF:	Mason P at 1; Giles JA at 84; McColl JA at 85
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Negligence - car accident - credibility of appellant's version of accident - whether physical evidence inconsistent - contradictory witness testimony - no appealable error demonstrated. (D)
PARTIES :	Sheila Margaret O'HARA QBE INSURANCE (AUST) LIMITED
FILE NUMBER(S):	CA 40597/03
COUNSEL:	Appellant: R McIlwaine SC/ M Maxwell Respondent: P Deakin QC/ S Loughnan
SOLICITORS:	Appellant: Stacks/Goudkamp Respondent: Abbott Tout

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 696/2002
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

CA 40597/03

MASON P
GILES JA
McCOLL JA

Tuesday 19 October 2004

Sheila Margaret O’HARA v QBE INSURANCE (AUSTRALIA) LIMITED

JUDGMENT

1 MASON P: Mr McIlwaine has argued this appeal skillfully and in detail, but for the reasons that follow, the difficulties in his path were insuperable.

2 The appellant was seriously injured in a car accident that occurred at about 12:30am on 6 March 1999. The accident happened on the Princes Highway, about five kilometres north of Eden. The appellant was the driver of a vehicle involved in a head-on collision with a vehicle being driven by Mr Raymond Ward. Mr Ward was killed in the accident. The respondent is his Compulsory Third Party insurer.

3 McGuire DCJ found the verdict for the defendant from which the appellant now appeals.

4 The appellant is a young Irish National. She held a provisional licence and had about 18 months experience as a driver. She was in Australia on a working holiday.

5 She set off to Melbourne with two friends in a rented Toyota Corolla motor vehicle. This was the first time she had driven in Australia. The three young women left Sydney at about 5pm. The appellant's companion, Christine Mannion, drove as far as Wollongong, where the group stopped to have a meal. The appellant's second companion, Catherine Morrissey, then took over and she drove as far as Bega. The appellant rested and slept during this leg of the journey.

6 The group stopped for petrol at Bega at about midnight. The appellant then took over the driving and her friends went to sleep. She drove with the air-conditioning on and the car windows raised as she listened to music from a cassette. As she approached the accident scene she was within a 100 km per hour zone and was travelling just under that speed.

7 The deceased, who lived at Pambula, had collected his adult daughter, Mrs King, at the railway station at Moe in Victoria at about a 8pm. It was about four hours drive from Moe to Eden. The deceased was driving a Holden Statesman.

8 The accident occurred at a point where the Princes Highway ran approximately north/south. At the point of the collision the carriageway consisted of a single lane running each way, divided by double unbroken separation lines painted white. The outer edge of each lane was bounded by a single, white, unbroken fog line. The area was in a bushland setting, with no street or other lighting to illuminate the Highway. Traffic was sparse and the weather was fine. It was very dark.

9 The appellant had negotiated a slight right-hand bend and was proceeding southwards up a modest grade as she approached the scene of the collision. The deceased was travelling slightly downhill, rounding a gentle left-hand turn that was still straightening 50 metres south of the point of impact.

10 It is common ground that the appellant's vehicle crossed completely onto its incorrect side of the road and came into head-on collision with the oncoming vehicle driven by the deceased. Tyre and gouge marks establish the point of impact as being on or immediately adjacent to the white fog line on the western side of the northbound lane in which the deceased was travelling.

11 The appellant's evidence was that she had rounded the left-hand bend and was proceeding up a rising section of the highway just prior to the accident. As she came around the bend and towards the straight, she could see the lights of an oncoming vehicle in the distance. Near the top of the hill the oncoming vehicle came into her vision. The evidence showed that was at a distance of some 171m from the point of impact. This distance equates to 3.42 seconds on the assumption that each driver was going at 95 kilometres per hour.

12 The trial judge records that the parties accepted the calculation that the point where the appellant could first observe the wheels of the deceased’s Holden in relation to the centre lines was some 101.34 metres away. This equates to 1.94 (say 2) seconds on the above-mentioned assumptions as to speeds. That would have been the appellant's first opportunity to detect any untoward or wayward driving by the deceased, so far as it involved crossing the unbroken centre line.

13 It was the appellant's case that the oncoming vehicle proceeded to drift gradually over the centre line, causing her to take evasive action to avoid a head-on collision. To this end she swerved to the right into the opposite lane, thereby explaining why the collision occurred where it did.

14 In describing the accident the appellant stated (Black 61-65):

Q. Well, now could you please tell His Honour what you recall happening from the point where you come around that, for you, left-hand bend, onto that rising straight section of road, right up to the time of the accident?
A. As I came around, and coming up the stretch, I could see lights in the distance.
…
A. As I came around the bend, and coming up towards the straight, I could see lights in the distance. And I was coming up, as the hill gradually comes up, as I was coming up near the top of it, the car came into my vision.
…
A. As I was coming up towards the – going up the hill, near the top if it, the car came into my better vision. And as I was approaching near the top of the hill, I could see the car and [it] started to gradually drift over the centre line.
Q. All right. And are you able to say how far the vehicle drifted over the centre line?
A. About half of the width of the car came over.
Q. And when that happened, what did you do?
A. I just had to get out of the way. I had to escape. I swerved to the right.
…
Q. You have already told us half of the vehicle was across the centre line?
A. Yes.
Q. What would have happened if the vehicle had continued to drift across the centre line -
A. We -
Q. -- or kept on going?
A. We would have had a head-on collision.
Q. What would have happened if it had stayed where it was, that is, half the width of the vehicle across the centre line?
A. We would have had a head-on collision.
Q. All right. So you told us you swerved to the right?
A. The right.
Q. And onto what part of the road?
A. Onto the opposite lane that I should have been on.
Q. All right. And what happened?
A. I had a head-on collision.
…
Q. What did the vehicle appear to you to be likely to do when you saw it drifting across the road?
A. It looked like it was going to continue drifting.
Q. And now, do you remember what is the next thing you remember after swerving to the right?

A. Waking up in the car with the police[man] beside me.

15 On the appellant's version, there would have been a verdict in her favour, because it was the deceased's negligence in crossing the centre line that created an emergency situation which forced her to take evasive action by swerving to the right.

16 The appellant was the only non-expert witness in her case on the liability issue. Her passengers were sleeping at the time of the accident. The appellant's evidence was given in Dublin in March 2003, later supplemented by brief additional cross-examination by conference telephone.

17 The appellant had previously been tried on a charge of culpable driving causing death. The jury returned a verdict of not guilty. The transcript of the appellant's evidence at the criminal trial was also put into evidence in the trial.

18 The respondent called Mrs King, the deceased's daughter. She was injured in the crash that killed her father. The respondent’s other witnesses on liability were Sergeant Savage, a police officer who investigated the crash scene; Sergeant Wilson and Constable Hoye, police officers who were driving behind the deceased and who observed the accident.

19 Each side called an accident reconstruction expert. The appellant's expert was Mr Grant Johnston; the respondent’s expert was Mr George Rechnitzer. The respondent also relied on the evidence of Mr John McIver, who had prepared a computer simulation of the accident relying on the data from Mr Johnston's report.

The appellant’s version of the accident

20 It is appropriate to examine in a little more detail the appellant's account of the accident. As the primary judge observed, this was the base assumption of the analysis of her expert, Mr Johnston (Red 50). Furthermore, as indicated below, difficulties in reconciling the appellant's account with the objective facts as interpreted by the experts formed a substantial basis for the trial judge's conclusions adverse to the appellant.

21 The appellant gave evidence at the criminal trial in December 2000 and in the current trial in March 2003 (in Dublin) and May 2003 (by conference phone). McGuire DCJ noted that there were some discrepancies as between her account in the two trials. His Honour stated that he would resolve any such inconsistencies or discrepancies by preferring the appellant's sworn evidence in the civil trial (Red 41-2). His Honour did not indicate what those inconsistencies or discrepancies were.

22 The learned judge summarised the appellant's evidence at Red 45-50.

23 When the appellant first observed the oncoming vehicle (as distinct from the approaching headlights) she said that it was on the correct side of the road and in its lane for "a couple" of seconds before starting to drift across into her lane. Judge McGuire noted (Red 45):

Whilst I do not place great significance on her estimate of “a couple” of seconds, it is clear that she observed it on its correct side for some short but appreciable time and therefore some appreciable distance.

24 The appellant also estimated that the deceased's car was "a couple of car lengths" away from her when she saw it partly cross onto its incorrect side of the road. On the appellant's account, she applied her brakes a split second before the collision and after she had crossed onto her incorrect side. Prior to this she had been proceeding at just under 100 km/h with her vehicle positioned about a foot to the left of the centre line.

25 The appellant was adamant that after the oncoming vehicle commenced to drift onto her side of the road it looked as though it was going to continue to drift. This was why she determined that the only course open to her was to swerve to the right. It was her evidence at the civil trial that she had no recollection of seeing the oncoming vehicle move to its left from the position in which she had observed it after it had drifted across the centre marking so that half of it was across the centre line.

The trial judge’s conclusions

26 The trial judge was not satisfied on the balance of probabilities that the deceased was ever on his incorrect side of the road or that his negligent driving was the cause of the accident.

27 His Honour declined to find that the appellant was an untruthful witness. Nevertheless, he said (Red 68-9):

However, I have no confidence in the accuracy of her recollection as to the circumstances of the accident.
Whilst I don’t find that Miss O’Hara deliberately sought to mislead, I am firmly of the view that her reconstruction of events is completely unreliable.
I hold no doubt that the collision did not occur for the reasons and in the manner described by the Plaintiff..

28 I accept as accurate and helpful the respondent’s submission that the trial judge identified six broad reasons for rejecting the appellant's description of the accident. According to the respondents written submissions they were:

(1) The objective physical evidence was inconsistent with the appellant’s description of the accident and was in fact consistent with the deceased’s vehicle always being on its correct side of the roadway.
(2) There was insufficient time and distance available on the roadway for the appellant to have observed what she described in relation to the deceased’s vehicle.
(3) The appellant’s evidence was contradicted by the evidence of the three witnesses to the accident who gave evidence in the case, namely, Mrs King, Sergeant Wilson and Constable Hoye.
(4) The trial judge expressly rejected the validity of the theories advanced by the appellant’s expert Mr Johnston and accepted the conclusions and reasoning of the respondent’s expert Mr Rechnizer.
(5) His Honour included particular findings critical of the appellant’s credit derived from other evidence in the case.
(6) His Honour relied upon the inherent unlikelihood of the accident occurring in the manner described by the appellant.

The propositions overlap to a considerable degree, as will become apparent.

29 This summary bears some elaboration. In elaborating, I shall address the appellant’s challenges to the findings.

(1) Objective physical evidence at accident scene

30 The trial judge held (Red 73):

I was unimpressed by Mr Johnson’s analysis of the accident and I do not accept the validity of his theories.
It appears to me that if I were to accept his evidence at its highest, all that it establishes is that the tyre marks left by the Holden could have been formed by a vehicle occupying the position as stated by the Plaintiff assuming as he did that she gave an accurate version.
Although he thought it was more probable that the Holden was on or about the centre line, he couldn’t say that it wasn’t on its correct side of the road. While maintaining that the Holden had swerved to its left, he was unable to say whether that swerve was sudden, general or gradual. There was certainly no physical evidence, no markings or anything on the roadway before the type marks which could give any indication or clue as to the nature of the swerve nor as to its commencement point.
There was simply no scientific basis to justify any conclusion that the Holden was ever on its incorrect side of the carriageway.

31 The appellant's expert had concluded that the physical evidence left by the deceased's vehicle was consistent with it having swerved to its left at about the same time as the appellant swerved to the right. As the judge found in the passage I have just quoted, Mr Johnston's evidence (as recounted at Red 50-53) did not rise higher than asserting consistency between the skid marks and his theory or opinion that the deceased's vehicle swerved from a position straddling the centre line of the roadway.

32 Mr Johnston took account of a computerised simulation of the crash scenario as described by the appellant. The approach path of the deceased's Holden was modelled, based on her description. The deceased’s vehicle was then assumed to have swerved suddenly to its left as a result of realising its position on the incorrect side of the roadway and probably simultaneously realising the presence of the appellant's approaching vehicle. The approach path of the appellant's vehicle is assumed to have been initially on its correct side of the road followed by an evasive swerve to the right in order to avoid the opposing Holden, which the appellant indicated was crossing onto her side of the centre line.

33 McGuire DCJ summarised the physical evidence regarding the tyre marks at Red 57. The marks from the appellant's vehicle were respectively 6.5m and 4m long and angled at approximately 10-11 degrees to the western fog line. [The respondent correctly points out in its submissions that, according to Exhibit 6, the marks began in the deceased's lane 20 centimetres east of the fog line.]

34 The single tyre mark made by the deceased's Holden was 13 m, 11.8 m of which was the pre-impact mark. It was at an eight degree angle (approximately) to the Western fog line. [Mr Rechnitzer estimated the angle at 6 degrees.] The photographic evidence shows that the tyre mark is not straight, as depicted in Ex H, but slightly curved to the left, looked at from the direction that the deceased was travelling (see esp Blue 502). In other words, to put it neutrally, the curve was in the same direction as the leftwards curve negotiated by the deceased shortly before the accident. It bears repeating, however, that the skid marks were on the extreme left or western side of the carriageway crossing the fog line, but not proceeding very far into the carriageway on the deceased’s side of the centre line.

35 The trial judge found the physical evidence to be inconsistent with the appellant's version of the accident. He said (Red 69-71):

For the Holden to have travelled to the point of impact, it follows that from the Plaintiff’s description, that it must have swerved left from a position when it was partly on its incorrect side of the road and drifting further across. If this is accepted that the vehicle was so placed, as a matter of sheer common sense, any such swerve would have commenced from a point when the Holden was straddling the centre lines and well along the 50 metres odd that it was traveling to the point of impact.
That swerve must have been at an acute angle if:
(1) The Defendant was to regain his correct side of the road;
(2) To proceed along the North bound lane:
(3) To leave tyre marks of 11.3 metres pre impact;
(4) To have sufficiently straightened his vehicle so that the tyre marks demonstrated a gentle left curve;
(5) To have crossed the fog line at an angle of 6 degrees (Mr Rechnitzer’s estimate).
It is common ground that each vehicle travelled slightly in excess of 50 metres as they converged upon each other to the point of impact. To cover that distance took some 2 seconds.
I consider it simply impossible that in that distance and in the time of approximately two seconds, the Holden could have been on its correct side and then to have drifted partly onto its incorrect side and then to have righted itself and regained the northbound lane and then to be so positioned that it was proceeding at an angle of but 6 degrees as estimated by Mr Rechnitzer to the fog lane when the collision occurred.
I believe it more likely that as Mr Rechnitzer postulated the Defendant’s vehicle was travelling correctly positioned in the northbound lane and that his skid marks or tyre marks demonstrate a divergence even further west to the point of impact. Had he been traveling in the south bound lane in the manner and in the position described by the Plaintiff, then there would have been a more sharply angled skid mark from the Defendant’s vehicle.
Mr Rechnitzer pointed out that the Plaintiff’s skid marks were more acutely angled at 12 degrees. At the point of the impact her vehicle was in the extreme west side on the shoulder of the northbound lane. Her right skid mark started 0.24 metres from the left side edge of the northbound lane. He considered that this position was indicative of her vehicle traveling south but in the northbound lane and swerving right to avoid a head on collision with the Holden traveling correctly in the same northbound lane.
It seems to me that had she swerved sharply from the point within her southbound lane into the northbound lane, then the yaw or tyre marks you would expect to see would be substantially longer than the short marks which were in fact made by the Toyota.

36 It is convenient at this stage to address two of the appellant’s major arguments.

37 The appellant submits that the judge overlooked or misunderstood Mr Rechnitzer’s concession that it was possible to infer from the deceased’s skid marks that he had earlier crossed the centre line, as the appellant had stated in her evidence. Accordingly, it was not possible to say (as the Judge did) that it was “simply impossible that in the distance and in the time of approximately two seconds, the Holden could have been on its correct side and then to have drifted partly onto its incorrect side and then to have righted itself and regained the northbound lane and then to be so positioned that it was proceeding at an angle of but 6 degrees as estimated by Mr Rechnitzer to the fog lane when the collision occurred”. This in effect had been the appellant’s version of the accident, with the two seconds time lapse being common ground based on more objective facts than the appellant’s estimation or recollection.

38 The appellant relies upon a passage at Black 442 in Mr Rechnitzer’s cross-examination. The passage is:

Q. If you take a line from the end of the – the commencement, I should call it – of the tyre mark for the Holden?
A. Yes.
Q. And you take a point above it on the centre line which equates to where that skid mark commences, are you able to do that?
A. If I understand you correctly, just projected back to where it hits the centre line; is that what you’re asking?
Q. No, I beg your pardon, just projected north so we can then go back east, so we can go back 40 metres?
A. Oh, that way. Yes.
Q. Then by reference to the reflectors are you able to say where that point would be?
A. Yes, it would be just [south] of code 19.

39 “Code 19” is a reference to a point depicted on Ex H on the centre line of the highway approximately 50 metres south of the point of impact, thus corresponding approximately with the distance away from the appellant at which the appellant would first have seen the tyres of the deceased’s vehicle as they crossed the centre line, on her version.

40 There are two major flaws in the appellant’s reliance on this passage at Black 442 as the key to attacking the judge’s reasoning at Red 70. The first is that the judge, like the appellant in her testimony, posited much more than a straight progression of the deceased’s vehicle between where it crossed back onto its correct side of the centre line and the point of impact. As his Honour indicated, the appellant’s evidence was that there was swerving on the deceased’s part, first to the left, viewed from the appellant’s point of view, and then to the right, nevertheless creating the gentle left curve depicted in the skid marks as they crossed the fog line (see Red 69-70).

41 The second fallacy in this argument is that it misconstrues what Mr Rechnitzer was agreeing to. If one reads the whole of the relevant cross-examination, the expert’s reference at Black 442 to understanding the cross-examiner correctly becomes crystal clear. Mr Richnitzer had given written and oral evidence to the effect that he saw nothing to suggest that the deceased had ever crossed the centre line. Thus, at Blue 406 Q-R he said:

The shallow 5.7 degrees and position of the skid mark well to the left of his lane together with the short time interval of under three seconds available for him to react indicates that Mr Ward’s vehicle was very likely travelling correctly positioned in the northbound lane. This is even more likely given that his skid mark diverges even further west onto the road shoulder to the point of impact. Had he been travelling partly in the southbound lane as claimed by Miss O’Hara then the expectation would be for a more sharply angled skid mark from Mr Ward’s vehicle and impact closer to the centre of the roadway rather than the extreme west side as had occurred.

See also Black 429. Mr Rechnitzer adhered to this evidence in cross-examination, citing in support the evidence that the skid marks of the deceased’s vehicle were slightly curved (see 439J).

42 When Mr McIlwaine SC cross-examined the expert he was at pains to put a different assumption, consistent with Ex H with its perfectly straight line depiction of the deceased’s skid marks, but inconsistent with the plain photographic evidence. Mr Rechnitzer baulked at the false assumption being put to him, but eventually (like a proper expert witness) accepted it and answered accordingly. The assumption of a straight skid line supported the appellant’s hypothesis that the “physical” evidence could have supported the appellant’s evidence because the projection of the straight line southwards would have had the deceased’s vehicle crossing the centre line at the agreed distance down the road. Mr Rechnitzer so agreed, while leaving the court in no doubt that he disputed the assumption as inconsistent with the photographic evidence and his belief as to the deceased’s path. The key passages are at Black 427Q-T, 429C-D and N, 432M-U, 434T-435E, 437S-438S, 439J, 443F-H.

43 It is also worth reiterating that the appellant’s own expert, Mr Johnston effectively conceded that he was not able to establish from the deceased’s skid marks that the deceased’s vehicle had ever crossed the centre line (see the passage cited at Red 52-3).

44 In short, the gently curved angle of the skid marks of the deceased’s vehicle was entirely consistent with the deceased having navigated the gently curving bend in the road by keeping to his proper side of the road.

45 The next broad attack upon the passage Red 70K-P was the submission that the judge should have addressed the possibility that the appellant first observed the deceased’s vehicle straying across the centre line when she first saw that vehicle, ie when it was about 171m away from her. This distance allowed the longer response time of between 3 and 3.3 seconds. But the problem for the appellant is that her evidence was that she saw the car drift over the centre line (see eg Black 63). The appellant’s evidence at Black 96-97 was quite explicit that she saw the marked centre line being crossed by the deceased. This evidence would have required the appellant to have seen the wheels of the car referable to the centre line. Accordingly, the judge did not err when he criticised the appellant’s evidence on the basis that what she said she saw must have been visible approximately 101m (or 2 seconds) away.

(2) Insufficient time and distance for appellant to have observed what she described

46 The trial judge found that the distance from the point which the appellant could first discern the position of the deceased’s vehicle relative to the centre line to the point of impact was about 100m. This calculation was common ground at trial. This meant that the time available to the appellant between this observation and the point of impact was 1.92 seconds (say 2 seconds). Again, this figure was common ground.

47 As indicated above, it was the appellant's evidence that she saw the deceased’s vehicle placed correctly on its side of the road for a second or two before it gradually drifted across the centre line for a couple of seconds until it was about halfway over that line. She said that she then saw the deceased’s vehicle at a couple of car lengths away from her.

48 Judge McGuire found that it was simply impossible in the distance and time available for all that the appellant claimed to have observed to have occurred (Red 70). I read this as a strong finding of fact as distinct from a holding of scientific impossibility. His Honour gave fuller reasons on this matter at Red 72. The appellant's expert, Mr Johnston had accepted as much (see his evidence as summarised at Red 73Q-W).

49 The respondent adds the following in paragraph 3.2.6 of its submissions:

Senior Counsel for the Appellant conceded that of the 50 or so metres available to the Appellant in which she could discern the deceased’s vehicle vis-à-vis the centre line, the initial 26 metres would have been taken up by “reaction time” [Black 3/613K-L]. That left about 24 metres for the Appellant to respond to the situation. The evidence of Mr Rechnitzer at Black 2/450C-F confirmed that the Appellant could not have swerved from her correct lane within that distance traveling at 100km/h.

50 In my view, the appellant has failed in her attempt to displace the strong weight of the physical and expert evidence. The situation remains that the impact occurred wholly on the deceased’s side of the centre line with no physical or expert evidence supporting the appellant’s account of the events immediately preceding the crash.

(3) Evidence of eyewitnesses inconsistent with appellant's evidence

51 The respondent relied upon the evidence of three eyewitnesses whose testimony was accepted by the trial judge.

52 Mrs King was a front seat passenger in her father's vehicle. After observing the police car following the deceased (see further below), she dozed off. Something caused her to waken. Her evidence is set out at Red 55-6. She saw her father leaning forward and gripping the steering wheel as he peered ahead of him. She neither observed nor felt any movement of the steering wheel and no deviation of the car. She saw headlights that were very bright and very close. It was not put to her in cross-examination that a sudden and obvious change of direction had woken her up.

53 The trial judge accepted Mrs King's evidence (see Red 74), finding in it further support for rejecting the appellant's version of the accident which ought to have produced sudden swerve marks on the part of the deceased's Holden.

54 The appellant challenged this finding, on the basis that Mrs King was dozing on and off. It was submitted that she may have been awakened by the sudden straightening of the car as her father pulled it back over his side of the road. But the difficulty for the appellant is that Mrs King gave evidence to the contrary (see Black 178G-J) that the judge accepted, as he was entitled to do (see Red 55-6, 74A-H). The appellant’s difficulty stemming from the well-known principles recently summarised in Fox v Percy (2003) 214 CLR 118 remains.

55 His Honour observed that he did not believe it likely that the driver of the Holden having complied with the speed limit and driven on his correct side of the road for some 4 to 5 km, would suddenly cross over the dividing lines immediately before the accident with a vehicle approaching him, when he was aware that the police were following him. The appellant submits that this observation overlooked the evidence of Mrs King (at Black 176) that her father had observed at some unidentified point north of Eden that the police car had stopped tailing them. In my view, this is all something of a quibble with reference to an observation by the trial judge that was something of an aside at best.

56 Sergeant Wilson and Constable Hoye had been following the deceased vehicle for 4-5 km. They said they were keeping about 70m back. On their observation, the deceased was driving in a conventional manner and keeping to the speed limit. The police officers were however about to pull the Holden over to conduct a breath test.

57 The two police officers observed the Holden to be driving on its correct side of the road immediately prior to the accident. Sergeant Wilson gave the following statement:

I saw the brake lights of the Statesman come on. Less than a second later I then saw the rear light of the vehicle including all brake lights and rear parker lights disappear. At the same time I saw a cloud of dust appear near the vehicle. As I approached the portion of the road where I saw the lights disappear, I saw that there had been a head-on collision between the Statesman and another vehicle …. I had not seen this vehicle prior to the collision. Both vehicles were on the Western side of the roadway and mostly off the main carriageway used by vehicles.

58 When the deceased's brake lights came on, Sergeant Wilson was (he said) about 70 m behind the Holden. He was adamant that the Holden was on the correct side of the road at all times. This evidence was tested in cross-examination and accepted by the trial judge. His Honour observed that Sergeant Wilson was concentrating on the rear of the deceased’s car and that the police officer based his conclusion upon experience stemming from observing cars at varying speeds. The judge set out the key portion of the officer’s cross-examination at Red 59-60.

59 Constable Hoye confirmed that the distance between the police car and the Holden was some 70m. This distance was held as both vehicles proceeded at the same pace. He gave a detailed and credible explanation why he was sure that the deceased was in his lane "hard over against the left-hand side of the road" (recounted by the trial judge at Red 62-4). The Constable was watching closely because the officers had decided to pull the vehicle up and administer a breath test.

60 The primary judge accepted the evidence of the police officers (see Red 74). He said that he was singularly impressed by Sergeant Wilson as a witness of truth, albeit that the judge considered the officer’s estimate of the distance separating the police vehicle and the Holden immediately prior to the accident as being inaccurate to an unspecified degree. It should, however, be observed that what Sergeant Wilson had conceded was the possibility that the distance could have been between 65-80m. Nor is the trial judge’s conclusion destroyed, in my view, by observing that the police conceded that the range of the beam of their car’s headlights was 50-60m.

(4) Preference for the respondent's expert evidence

61 I have already set out a passage from Red 73 indicating that the trial judge was unimpressed with Mr Johnston's analysis of the accident and that he did not accept the validity of that expert's theories about the accident. Mr Johnston based his assumptions, in part, upon acceptance of the appellant's version of the accident. Furthermore, as indicated above, his testimony rose no higher than a hypothesis he said was consistent with the objective facts. I have already indicated why the trial judge found otherwise on such matters. In my view, his Honour was entitled to do so, since he saw the two experts cross-examined, having regard to the objective evidence and having regard to the concessions that Mr Johnston was driven to make in the passage quoted at Red 52-3.

62 The trial judge accepted the evidence of the respondent's expert, Mr Rechnitzer. I have already set out the relevant passage from Red 69-71.

(5) Appellant's credit

63 The trial judge had the advantage, denied to this Court, of seeing the appellant give evidence in the witness box in Dublin.

64 His Honour declined to find that the appellant was an untruthful witness, obviously in the sense of being deliberately untruthful. However, he was firmly of the view that what he described as the appellant's "reconstruction of events" was completely unreliable. He had no confidence in the accuracy of the appellant's recollection as to the circumstances of the accident (Red 68-9).

65 A fair reading of His Honour's reasons discloses that this conclusion turned in part upon his observation of the appellant giving testimony, in part with what I have termed the difficulties in reconciling the appellant’s version of the accident with the physical evidence and the agreed times and distances involved, and in part upon his more favourable assessment of the testimony of witnesses who gave evidence contradicting the appellant, especially Sergeant Wilson.

66 Another matter, dwelt upon at some length in the judgment below, related to the rejection of the appellant's evidence that she had given an account of the accident consistent with her trial testimony when Sergeant Wilson spoke to her at the scene shortly after the accident. She was then seriously injured in her motor vehicle with her legs trapped. Sergeant Wilson strenuously denied the appellant's account (see Red 60-62). Judge McGuire said (Red 75 A-D):

I have no hesitation in preferring Sgt Wilson’s version of the conversation between the Plaintiff and himself at the accident scene and I have no hesitation in rejecting her recollection and her version of their exchange. This is a significant example of her unreliable recall.

67 His Honour gave detailed reasons for preferring the police officer's testimony on this issue (Red 75-6). The appellant has not advanced any compelling argument suggesting reason to doubt these conclusions.

68 One criticism of the trial judge’s reasoning as to the appellant’s credibility does carry some weight. At Red 76K-R the judge said:

Clearly it is her recollection that the dividing line was a single white line albeit that at one point in her evidence she referred to it being a double line. This raises in my mind a major doubt as to whether she had an accurate recollection of where she was on the road way.
I don’t believe that the evidence is such that I could safely conclude that she mistook the fog line for the centre line of the highway. However if she was alert and able to make the observations she described as to the Defendant’s conduct, she should have appreciated the true nature of the double unbroken lines which divided the highway.

69 Early in her cross-examination the appellant explained her use of the terms double and single continuous white line with reference to the centre line of the highway (see Black 96-7). On one view, she spoke in effect of these being two single lines, one for each side of the road. It is however possible that she was conceding lack of recall at the vital spot in the road.

70 Accordingly, I think that his Honour’s “major doubt” based upon the appellant’s general recollection being that the dividing line was a single white line was possibly misplaced. But I would not order a new trial or enter a verdict for the plaintiff on this basis. The portion of the judgment in which this remark was made is one where the judge is dealing with the defendant’s submission that the appellant mistook the fog line for the centre line. His Honour declined to make any such finding. It was not necessary for him to do so. However, nothing in the reasons indicates that this part of the reasoning was used to discredit the appellant’s evidence as to where the deceased, I emphasise the deceased, was on the highway.

71 In any event, I am quite unpersuaded that this possible misunderstanding as to the appellant’s use of the term “single white line” as a description of the centre line was a material part of the judge’s decision to reject the appellant’s case. That case rested on much more. And the problems for that case, adverted to elsewhere in the judge’s reasons, were much greater than a possible failure of recollection on the appellant’s part as to the nature of the centre line that was on any version an unbroken one. The judge was properly seized of the fact that the appellant was clear in her evidence that the deceased had crossed the line.

(6) Inherent improbability of accident occurring as the appellant deposed

72 This really restates matters already covered in dealing with the first two matters.

Other criticisms of the trial judge’s reasoning

73 The appellant was critical that the trial judge had not specified the discrepancies between her evidence in the criminal and civil trials. His Honour alluded to the matter in the most general of terms when he said (Red 41-2):

There are some discrepancies between her account as contained in the transcript of the criminal trial and her evidence in her civil action when describing the event. I wish to make it perfectly clear that I will resolve any such inconsistencies or discrepancies by preferring her sworn evidence in the proceedings before me.

74 It was submitted that there were two items of evidence given in the criminal trial that supported the appellant that should have been placed in the scales in her favour, and certainly should not have been used to her disadvantage as regards credibility, namely:

(a) her evidence in the criminal trial that there was a yellow advisory speed sign, something she could not recall in the civil trial and on which she was strongly confronted in cross-examination;

(b) her evidence in the criminal trial (at Blue 336) describing what she saw in the following terms (emphasis added):


A. I was coming up the straight and as I was passing, like, the sign, I eased off as I could see a car coming around the corner and it was coming, it was in its lane and it started to cross over slightly into my lane and I just swerved. Q. What happened then? A. I could see it coming back like , it was just slightly coming over and then coming back as I swerved.


The appellant could not recall this aspect of her evidence in the civil trial (see Black 280).

75 The appellant’s counsel conceded that we do not know what use (if any) the trial judge made as to the discrepancies between the appellant’s evidence in the two trials to which he alluded in the most general of terms. This means, in my view, that the present criticism loses most if not all of its sting. At their highest, the matters hypothesised could only have gone to reinforce his Honour’s adverse view as to the appellant’s credibility as a historian of the critical events in the seconds leading up to the accident. Statements in Rosenberg v Percival (2001) 205 CLR 434 at 448[43], 489[166] and 505[222[-[223] indicate that an appellant must establish a dispositive or decisive error when mounting an attack upon an adverse credibility finding. See also Fox v Percy at [90] per McHugh J.

76 I am firmly satisfied that the matters referred to in this criticism are not of that character.

77 As regards the advisory speed sign, its existence was established later in the trial, something that accounts for the fact that McGuire DCJ made no mention of the cross-examination on the point when addressing the appellant’s credibility. Indeed, his Honour observed (at Red 65) that there was a yellow sign situated at a point consistent with the appellant’s account given in the criminal trial.

78 As regards the suggestion in the criminal trial evidence that the deceased’s car was “coming back” towards his correct side as the appellant swerved, the judge did recognise that this was the appellant’s version of the accident (see Red 69Q and 70M).

79 Similarly, I see no merit in the appellant’s suggestion that the adverse conclusion in the judgment is affected by the cross-examination of the appellant about whether or not she was a team leader in her job in Ireland. There is nothing to indicate that the trial judge had regard to this matter. Nor should he have, given that the issue was clarified in the appellant’s favour by later evidence from a Mr Madeley upon which the appellant relies to mount this attack in the first place.

Conclusion

80 The appellant at trial bore the onus of establishing the negligence of the deceased. The point of impact was easily within the deceased’s side of the road. The appellant had an explanation for this, but it depended upon the judge being persuaded to accept her testimony. Her expert’s evidence rose no higher than pointing to physical evidence that he said was consistent with the appellant’s version of the accident. The appellant’s expert was challenged as to his theory and was faced with the respondent’s expert who (to put matters at the lowest) demonstrated that the physical evidence did not lend support to the appellant’s case.

81 This left the appellant wholly reliant upon acceptance of her own strongly-challenged testimony. The trial judge was not bound to accept her and he did not, although he was at pains to state that there was no finding of deliberate untruthfulness. There were however matters that gave the trial judge legitimate pause as regards the credibility of the appellant’s version of events that on any view of the matter happened within a couple of seconds on a dark country road. In fact, there was contradictory eye-witness testimony from the two police officers, which the judge was well entitled to accept (as he did), as well as limited evidence from Mrs King (also accepted) that supported the respondent’s case.

82 The appellant failed to persuade the trial judge. Given that his Honour’s conclusions turned in significant part upon his assessment of the lay and expert witnesses called at trial, the appellant’s task in persuading this Court of appealable error was always a difficult one. Unfortunately for the appellant, she has failed to demonstrate error in the essential reasoning of the primary judge or his Honour’s conclusion.

83 I propose that the appeal be dismissed with costs.

84 GILES JA: I agree.

85 McCOLL JA: I also agree.

86 MASON P: The order of the Court will be as I have indicated.

**********

Last Modified: 11/18/2004