Redpath v Hadid

[2004] NSWCA 295

CITATION:	REDPATH v HADID [2004] NSWCA 295
HEARING DATE(S):	2 August 2004
JUDGMENT DATE:	1 September 2004
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 51; Ipp JA at 59
DECISION:	1. Appeal dismissed with costs; 2. Cross-appeal dismissed with costs.
CATCHWORDS:	MOTOR VEHICLE COLLISION - point of impact - assessment of evidence as to which vehicle crossed the centre line - whether trial Judge relied on evidence of tendency as to the appellant's character as a driver - whether evidence simply went to credibility as a witness - contributory negligence
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Bugg v Day (1949) 79 CLR 442 Hadid v Redpath (2001) 35 MVR 152 Sibley v Kais (1967) 118 CLR 424 Trompp v Liddle (1941) 41 SR (NSW) 108 Vakauta v Kelly (1988) 13 NSWLR 502
PARTIES :	Grant Redpath - Appellant Maroun Hadid - Respondent
FILE NUMBER(S):	CA 40015/04; 40324/04
COUNSEL:	J E Maconachie QC/M McFadden - Appellant P Webb QC/P R Sternberg - Respondent
SOLICITORS:	Carroll & O'Dea - Appellant Elias, Gates & Associates - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	8110/97
LOWER COURT JUDICIAL OFFICER :	English DCJ

CA 40015/04; 40324/04
DC 8110/97

SHELLER JA
HODGSON JA
IPP JA

REDPATH v HADID

On 12 December 1995, the appellant and respondent were involved in a motor vehicle accident on Stoney Creek Road, Bexley when a motor vehicle driven by the respondent collided with a semi-trailer driven by the appellant. The respondent brought proceedings against the appellant to recover damages for injuries he sustained as a result of this collision.

On 6 March 2001, Judge English dismissed the respondent’s claim and ordered the respondent to pay the appellant’s costs. On 20 November 2001, this Court allowed an appeal, set aside the orders of Judge English and ordered a new trial limited to liability.

Judge Cooper in the District Court heard the new trial. His Honour identified the case as being concerned with two main issues, namely where the impact of the vehicles took place on Stoney Creek Road and which of the two vehicles was on the wrong side of the centre line at the time of impact. On 16 December 2003, his Honour gave judgment in favour of the respondent. However, his Honour found the respondent guilty of contributory negligence and apportioned responsibility for the respondent’s damage at 85 per cent against the appellant and 15 per cent against the respondent.

The appellant appealed the findings of the trial Judge on the grounds that his Honour erred in relation to the location of the accident, in rejecting the opinion of the appellant’s expert Mr Jamieson, in failing to adequately have regard to the evidence of the witness Mrs Dunn and in failing to provide proper reasons for preferring the evidence of the respondent. The appellant also contended that in rejecting the evidence of the appellant the trial Judge was in breach of s95 of the Evidence Act 1995 in that his Honour relied on certain evidence as proving the appellant’s character as a driver. The appellant also submitted that the trial Judge erred in his assessment of the contributory negligence against the respondent and that the assessment should have been higher. The respondent cross-appealed against his Honour’s finding of contributory negligence.

Held in relation to point of impact:

Per Sheller JA, Hodgson and Ipp JJA agreeing:

1. No evidence was called on behalf of the appellant to suggest that the ultimate resting place of the respondent’s car was somewhere other than the place indicated by Senior Constable Mood and by Buddy Hadid.

2. Once the evidence of Senior Constable Mood and Buddy Hadid was accepted that the respondent’s vehicle came to rest opposite the mouth of Staples Street, inevitably on all the calculations the point of impact must have been in the area of the mouth of Wolli Street.

3. The trial Judge’s findings about the point of impact and about where the respondent’s car finally came to rest were not only open to him but were inevitable. Nothing said in the submissions put to this court raised any doubt about these findings.

Held in relation to which vehicle crossed the centre line:

Per Sheller JA, Hodgson JA and Ipp JA agreeing:

4. The evidence of Mrs Dunn, although accepted as given honestly, could have little weight in favour of the appellant.

5. His Honour clearly preferred the respondent’s evidence that the appellant crossed over the centre line of the roadway and collided with the front driver’s side corner of the respondent’s car. The appellant’s complaint was that in reaching this finding the trial Judge relied on evidence of tendency.

Held in relation to whether trial Judge relied on evidence of tendency:

Per Sheller JA, Hodgson JA agreeing:

6. The evidence adduced from the appellant in cross-examination about his log book, his failure to comply with the speed limit and particularly his false entries about breaks from driving, was led under the exception to the creditability rule on the basis that the evidence had substantial probative value; s103 of the Evidence Act.

7. All of this evidence, which went in without objection, went in on credibility. While it is unfortunate that the trial Judge did not expressly state what is to be implied, namely that he preferred the respondent’s evidence about the position of the vehicles at the time of the collision to that of the appellant, it is plain enough that this is what his Honour did.

8. There was ample and compelling evidence that the collision occurred where the respondent said it did and in the manner that he said it did. There was evidence that the appellant had forgone at least part of the statutory rest periods and that he was exceeding the speed limit. It is not persuasive that tendency or propensity played any part in the conclusions that the trial Judge expressed. Although it is plain that his Honour took account of the evidence that the respondent extracted about the appellant’s credibility in reaching the conclusion he did.

Per Hodgson JA:

9. The primary judge’s reference to the appellant’s “character as a driver”, although perhaps unfortunately expressed, is properly construed as referring to the appellant’s reliability as witness concerning his performance as a driver, both in terms of honesty and in terms of the reliability of his expressions of opinion on driving matters such as speed, safety and the position of the vehicle on the road.

Per Ipp JA:

10. The trial Judge, of his own accord, in making the crucial factual finding in the case, had regard to the appellant’s “character as a driver.” This phrase cannot be understood as meaning that the Judge was simply referring to a matter that was material to the credibility of the appellant.

11. The Judge, in his own words, was concerned with the appellant’s character “as a driver”, not as a witness. The willingness of the appellant to infringe the rules of the road and to forego at least part of the statutory rest periods and the traffic fines he had incurred were not matters relevant to his credibility as a witness.

12. His Honour had regard to impermissible material and the appellant thereby lost the chance of a verdict in his favour.

Held in relation to contributory negligence:

Per Sheller JA, Hodgson and Ipp JJA agreeing:

13. It was a matter for the trial Judge whether in the circumstances of this collision the respondent was guilty of contributory negligence. No error in his Honour’s approach or conclusion has been demonstrated.

Legislation:

Evidence Act 1995

Cases cited:

(1949) 79 CLR 442

(2001) 35 MVR 152

(1967) 118 CLR 424

(1941) 41 SR (NSW) 108

(1988) 13 NSWLR 502

ORDERS
1. Appeal dismissed with costs;
2. Cross-appeal dismissed with costs.
**********

CA 40015/04; 40324/04
DC 8110/97

SHELLER JA
HODGSON JA
IPP JA

Wednesday, 1 September 2004

REDPATH v HADID

Judgment

1 SHELLER JA:

Introduction

The respondent, Maroun Hadid, sued the appellant, Grant Redpath, to recover damages for injuries he suffered on 12 December 1995 when a motor vehicle he was driving collided with a semi-trailer, comprising a prime mover and trailer, driven by the appellant. The proceedings were heard by Judge English in the District Court in August 1999 and March 2000 when judgment was reserved. On 6 March 2001, Judge English dismissed the respondent’s claim and ordered the respondent to pay the appellant’s costs. On 20 November 2001, this Court allowed an appeal, set aside the orders of Judge English and ordered a new trial limited to liability; Hadid v Redpath (2001) 35 MVR 152.

2 The new trial was heard by his Honour Judge Cooper in the District Court in November 2003. On 16 December 2003, his Honour found judgment in favour of the respondent against the appellant, found the respondent guilty of contributory negligence and apportioned responsibility for the respondent’s damage at 85 per cent against the appellant and 15 per cent against the respondent. From this decision the appellant appeals. The respondent has cross-appealed, by leave of the Court, against the finding of contributory negligence.

3 The appellant’s original grounds of appeal were:

“1. That his Honour erred in identifying the point of impact and location of the accident at a location approximately in line with the eastern kerb alignment of Wolli Street. His Honour should have found that the impact occurred on Stoney Creek Road approximately adjacent to the Bexley Golf Course Clubhouse.
2. That his Honour erred in the blanket rejection of the opinion of the Appellant’s expert, Mr Jamieson, including his 3D simulation of the accident, in that his Honour failed to appreciate that the 3D simulation depicted how a prime mover and trailer would move if crossing onto the incorrect side of the road, ie by way of a broad parabola rather than by way of a sharp, serving (sic) movement.
3. That his Honour’s reasons do not demonstrate a proper basis for rejecting the evidence of the Appellant and preferring the evidence of the Respondent.
4. That his Honour failed to provide adequate reasons in that he articulated reasons for not accepting the evidence of the Appellant, but failed to deal with anomalies in the Respondent’s evidence and offered no reason why the Respondent’s evidence should be preferred to that of the Appellant.
5. That his Honour failed to have regard to, or adequate regard to, the evidence of Ms Dunn that at no time did she observe the trailer to cross onto the wrong side of the road.
6. That his Honour’s reasoning process was flawed in that he relied upon speculation rather than inferential reasoning in reaching his conclusion as to which vehicle was on its correct side of the road.
7. In the alternative to paragraphs 1-6 above, and given his Honour’s primary findings of fact, his Honour erred in his assessment of contributory negligence against the Appellant (sic) at 15% . His Honour’s assessment should have been higher, ie 40%.”
Factual background

4 At about 10.20 pm on 12 December 1995, the respondent was driving his Holden Commodore Station wagon in an easterly direction along Stoney Creek Road, Bexley when his vehicle collided with the appellant’s prime mover which the appellant was driving on the same road in a westerly direction. As a result, the respondent suffered severe injuries and his motor vehicle was very badly damaged. In his reasons for judgment, Judge Cooper said that the case had been fought out on two issues; first, whether the impact between the vehicles take place in the vicinity of the curve opposite the mouth of Wolli Street, as the respondent asserted, or whether it took place some 200 metres to the west at a point about adjacent to the Bexley Golf Club clubhouse, as the appellant asserted; secondly, which of the two vehicles was on its wrong side of the centre line at the time of impact.

Point where respondent’s vehicle came to rest

5 Relevant to the determination of the first of these issues was the final position where the respondent’s motor vehicle came to rest after the collision. In the course of his judgment, Judge Cooper said:

“It is not in dispute that the plaintiff’s vehicle came to rest on the southern side of Stoney Creek Road approximately opposite the mouth of Staples Street, which is about 100 metres west [scil east] of where he says the impact occurred. It is, however, over 200 metres from where the defendant says the impact occurred.”

6 The first of these sentences inspired a new ground of appeal which the appellant sought and was granted leave to add to his notice of appeal when the hearing of the appeal began. This ground was:

“1A That his Honour erred in finding that it was not in dispute that the plaintiff’s vehicle came to rest on the southern side of the Stoney Creek Road approximately opposite the mouth of Staple [sic] Street.”

7 A great deal of energy was devoted by those appearing for the appellant to this new ground of appeal. In particular, the Court was invited to read transcript and listen to a tape, which the Court did, of an interchange between the trial Judge and Mr Sternberg, who appeared as junior to Mr Webb QC, at the trial and on the appeal, for the respondent. During this interchange, the trial Judge is recorded as saying:

“As I understand it there was no dispute is there, that the vehicle came to rest opposite Staples Street. Right.”
Mr Sternberg: “No, that’s the evidence of the police officer and that’s the evidence of Buddy Hadid.”

We were provided with another slightly different transcription of this interchange. Having listened to the recording, I have no doubt that by the word “no” Mr Sternberg was indicating that there was no dispute that the vehicle came to rest opposite Staples Street.

8 On behalf of the respondent, it was said with some force that a statement by a trial Judge in reasons for judgment concerning what was not in dispute would not lightly be put aside in this Court. In Vakauta v Kelly (1988) 13 NSWLR 502 (a decision of this Court later reversed by the High Court (1989) 167 CLR 568)) McHugh JA (as his Honour then was) said at 524-5:

“If a dispute exists between the parties or the judge as to what was said, the version of the judge must be conclusive. It is difficult to see how the contrary view can prevail without requiring or permitting the judge to give evidence and be cross-examined in the appellate court. Such a course is not merely unthinkable, it is contrary to the function and status of a judge in a court of record. It is to the judge, and not counsel or litigants, that the community has delegated the power of deciding disputed questions of fact. That must include any dispute as to what was said by a witness or even by the judge himself. For a very long time, the practice in New South Wales has been for counsel at the start of each day’s hearing of a trial to ask the judge to correct any errors or omissions in the transcript. If counsel differ in their recollection, it is the judge who determines whether the transcript should stand or be amended. Where a transcript is taken, the better practice is to refuse to admit disputed evidence to supplement the transcript of a court of record.”

9 I do not believe that anything said in the High Court on the appeal detracts from this statement.

10 In the present case, the evidence that the respondent’s vehicle came to rest on the southern side of Stoney Creek Road approximately opposite the mouth of Staples Street was convincing and in fact, all one way. A police officer, who attended the scene of the accident on the night, Senior Constable Mood, gave evidence that the semi trailer was parked in the kerb lane outside the Bexley Golf Course and the respondent’s motor vehicle was against the southern kerb of Stoney Creek Road facing in an easterly direction in lane one westbound against the kerb. He was shown a photograph, which became exhibit D, taken of Stoney Creek Road looking in an eastbound direction. This photograph depicted on the immediate left hand or northern side, Wolli Street, on both sides of the road a number of telegraph poles, and on the right hand or southern side of the road, a bus stop with part of the fence of the golf course. He marked the photograph at the base of a telegraph pole on the right hand or southern side of Stoney Creek Road as the place where he saw the respondent’s motor vehicle. He was asked whether he could recall the name of the nearest cross street to the position that he had marked on exhibit D and said:

“I would believe the nearest cross street would be either Wolli Street or Staples. Wolli Street or Staples Street. I’m not really sure in respect of which. They may well be equi distant from each other.”

11 Senior Constable Mood was cross-examined on behalf of the appellant. Nowhere was it suggested to him directly that the position he had marked on exhibit D was not the position at which he saw the respondent’s car on the night in question.

12 The respondent’s son, Badawi (Buddy) Hadid, gave evidence. After he learnt of the accident by telephone, he drove from the place where he was working that night, a restaurant located on the corner of Forest Road and St Georges Road in Bexley, down St Georges Road towards the T- intersection with Stoney Creek Road where he turned left into Stoney Creek Road. He saw his father’s car in the gutter in the left hand lane facing in the direction from which he was coming towards Bexley. Mr Buddy Hadid gave the following evidence:

“Mr Hadid, may I take you now back to where you first saw your father’s car as it was described by you on Stoney Creek Road that evening. Did you notice the proximity of any cross streets to where your car was located – sorry – where your father’s car was located? A. Yes, there was.
Q. Did you know the name of the cross street on the evening that you attended the accident? A. No, I didn’t.
Q. Did you subsequently learn the name of the cross street? A. Yes, I did.
Q. What was that cross street? A. Staples Street.
Q. Staples? A. That’s right.
Q. I show you a photograph and ask you if you are able to mark on that photograph the location where you saw your father’s car when you arrived on the evening of 12 December. Finished? A. Yes.”

13 That photograph became exhibit J. Buddy Hadid marked a position beside the same telegraph pole as that marked by Senior Constable Mood in exhibit D. Buddy Hadid was not cross-examined to suggest that the point he had marked on exhibit J was wrong.

14 The appellant gave evidence that after the collision he parked the semi-trailer in front of the golf club and some time later went back to look at the respondent’s car. He walked back down the footpath, past the golf club and further down the road to where the car ended up. He said it was “down the road out the front of the golf links. It was pointing to the east. Sitting in the gutter.” In every respect, this was consistent with the evidence of Senior Constable Mood and Buddy Hadid. In relation to where he saw the car he did not recall seeing any telegraph poles. He estimated the distance between the point on Stoney Creek Road where he heard the bang which marked the collision and where he observed the car up against the kerb as probably about a couple of hundred metres. Asked whether he could recall the presence of any intersecting streets on the other side of the road to that where the respondent’s car was or in that vicinity, he said “I never took any notice.” “I wasn’t looking.” He was not asked to comment upon the point marked on exhibit D and exhibit J by Senior Constable Mood and Buddy Hadid.

15 No evidence was called on behalf of the appellant to suggest that the ultimate resting place of the respondent’s car was somewhere other than the place indicated by Senior Constable Mood and by Buddy Hadid.

Point of impact

16 In written submissions in support of this part of this appeal, it was said that the trial Judge’s methodology was to take as his starting point a piece of evidence which he regarded as non-contentious, namely that the respondent’s vehicle had come to rest on the southern side of Stoney Creek Road, approximately opposite the mouth of Staples Street. By reference to the damage to the respondent’s vehicle and expert opinion, his Honour concluded that the respondent’s vehicle could not have travelled more than one hundred metres following impact and, accordingly, the impact occurred on a curve approximately in line with the eastern kerb alignment of Wolli Street. It was submitted by counsel for the appellant, Mr Maconachie QC, that:

“While the appellant generally accepts that it was open to his Honour to follow that reasoning process, he challenges his Honour’s start point, ie that it was not in dispute that the respondent’s vehicle came to rest opposite the mouth of Staple [sic] Street. This was a contested issue, and his Honour was wrong to commence his process of reasoning on the basis that this had been established as an undisputed fact.”

17 In his submissions, Mr Maconachie, conceded that the collision did not occur where the appellant claimed in his evidence, namely on a flat and straight stretch of Stoney Creek Road outside the Bexley Golf Course Clubhouse. Further, Mr Maconachie accepted that it was open for the trial Judge to find that after the collision the respondent’s car was in such a state, notably with the front driver’s side wheel at least partially detached and facing towards its right with the tyre partially removed from the rim which was damaged, that it could not continue to travel for a very great distance. Judge Cooper observed:

“One does not have to be an engineer to appreciate that this would make steering of the car impossible and would also cause the car to veer towards its right at a reasonably sharp angle, subject to the effects of its pre impact forward motion.”

18 Mr Wiltshire, an engineer engaged by the respondent, described the bar protruding from the front driver’s side corner of the damaged car as “the tyre [scil tie] bar which is part of the suspension and locates the wheel to the chassis.” He confirmed that with this damage there would be no ability to steer the car. His Honour said:

“54 … He [Mr Wiltshire] also pointed out that the steering linkages are towards the back of the wheel and, whilst they cannot be seen, he would expect that if there is as much damage to the front of the suspension as is shown in the photograph, then there would be damage to the steering mechanism. It was his opinion that that front driver’s side wheel would be unable to rotate freely because of the pressure of the body damage upon it and this would give rise to tyre marks on the roadway and the dragging of the vehicle sideways to its right.
55 In his report of 2 October 2003, part of Exhibit G, he states that he inspected the accident site on 14 September 2003. He measured the distance from the centre of the golf club house to the centre of Wolli Street at 120 metres, and from the centre of Wolli Street to the centre of Staples Street at 110 metres.
56 In an attempt to determine the more likely of the two alternative collision zones, he calculated the drag co-efficients for the two zones and conducted tests to measure the drag co-efficients of vehicles with front-side damage similar to the collision damage sustained by the plaintiff’s vehicle. By comparing the calculated co-efficients and the results of the tests, he concluded that the test results were consistent with the collision having occurred in the region of Wolli Street and not outside the club. In his report he also points out that, based on the photographic evidence, he would expect that the vehicle’s braking ability would be greatly reduced, if not ineffectual. He concluded that, whereas it is possible for the collision to have occurred near Wolli Street, it is extremely unlikely for it to have occurred outside the clubhouse. I should mention here that his views are supported not only by mathematical calculations but also by the results of tests performed with four other similarly damaged vehicles which he described in his report.
57 A report from Mr Booth, dated 10 February, 2000, part of Exhibit G, after considering the photographs, the nature of the road surface, the grades and curves involved and performing some mathematical calculations, expressed the opinion that the plaintiff’s vehicle would not travel 200 metres after the point of impact due to its probable stopping distance, nor could it negotiate the curve in Stoney Creek Road due to the loss of steering control. It concludes, having regard to the level of damage and the combination of camber and grades, the probable point of impact was east of the exit side of the curve in Stoney Creek Road as the plaintiff proceeded east.”

19 The appellant did not challenge the conclusions the trial Judge drew from Mr Wiltshire’s report beyond saying in ground 2 of his notice of appeal:

“That his Honour erred in the blanket rejection of the opinion of the Appellant’s expert, Mr Jamieson, including his 3D simulation of the accident, in that his Honour failed to appreciate that the 3D simulation depicted how a prime mover and trailer would move if crossing onto the incorrect side of the road, ie by way of a broad parabola rather than by way of a sharp, serving movement.”

20 The trial Judge said:

“61 It is clear from the damage to both vehicles that, at the time of the impact, they were very close to being in line. I agree with the conclusion of Jamieson Foley in its report of 27 May, 1999 that -
‘It is quite evident that the Holden impacted the right front corner of the semi-trailer engaging its bulbar, its right front wheel, fuel tank and twin drive wheels at a shallow angle, with an overlap of no more than 200 mm to 300 mm.’
62 Jamieson Foley then conducted a 3D computer simulation of 2 different scenarios one where the plaintiff’s vehicle was on its correct side of the centre line and the other where the defendant’s vehicle was on its correct side of that centre line.
63 In effect, Jamieson Foley delegated to a computer the very task which they were required to perform. One does not know all of the information which they fed into the computer, nor does one know the methodology applied by the computer program to give its result. Such simulations may be interesting but they are only as good as the data fed in and the methodology applied by the operating program. With certain exceptions these are not known.”

21 Neither the appellant’s written nor oral submissions threw the slightest doubt upon his Honour’s process of reasoning. In short, once the evidence of Senior Constable Mood and Buddy Hadid was accepted that the respondent’s vehicle came to rest opposite the mouth of Staples Street, inevitably on all the calculations the point of impact must have been in the area of the mouth of Wolli Street where, travelling west as the appellant was, the road was climbing and turning away to the left before it came to the straight and flat piece of road outside the golf clubhouse. As his Honour said, the distances measured were relevantly, moving in an easterly direction down Stoney Creek Road, 120 metres from the centre of the golf clubhouse to the centre of Wolli Street and 110 metres from the centre of Wolli Street to the centre of Staples Street. In my opinion, on the evidence, the trial Judge’s findings about the point of impact and about where the respondent’s car eventually came to rest were not only open to him but were inevitable. Nothing said in the submissions put to this Court raised any doubt about these findings.

Evidence of Ms Dunn

22 However, some account must be given to the evidence of Ms Dunn. The appellant called Ms Dunn as his first witness. Ms Dunn was employed by the New South Wales Police Service as an acting intelligence analyst. On the night in question, she entered Stoney Creek Road from Forest Road, Bexley and began to travel in a generally westerly direction. She found herself travelling behind the appellant’s semi-trailer. She had been following it for several minutes at a constant speed of 60 kilometres per hour. She was travelling in lane one nearest the kerb. The semi-trailer was in lane two next to the centre line. Ms Dunn was unable to give an exact distance of how far behind she was but stated she was probably able to read the appellant’s number plate. At no stage did she see the semi-trailer move out of the lane it was in. She said that just prior to the incident she could recall being near what she described as the first entrance of the Bexley Golf Course. She said the entrance was just around a slight bend starting to go up the grade. She identified this entrance on one of the photographs in evidence. She saw sparks in the second lane where the semi-trailer was as she was passing the golf course entry. She realised the sparks were from a car, which she then saw. It was in the second lane, where the truck had been, heading towards her. She took evasive action by veering onto the other side of the road, that is to say the side of the road used by traffic travelling east in the opposite direction. She then returned to her side of the road. The truck was still in front of her. It might have been in the middle of the two lanes going west. She stopped her car when she got back on her side of the road behind the semi-trailer. They were next to the car park to the golf club. She then walked down the road, back in the directiom she had come to the bend where she could see “down to the next bend”. She saw a vehicle in a telegraph pole. “It had collided with a telegraph pole.” She did not go down to where the car was.

23 Not surprisingly, Ms Dunn was unable to identify the telegraph pole by reference to photograph number 3 in exhibit C. In that photograph apart from a telegraph pole, which is opposite Wolli Street, the positions of other telegraph poles on the southern side of the road are not visible. When asked about whether she could see the front of the cabin of the semi-trailer at the time of the accident, she said she had seen the semi-trailer veer slightly to the left before she saw the sparks.

24 In cross-examination, she agreed that the semi-trailer was about two car lengths in front of her on the right lane. She was asked these questions in cross-examination:

“Q. Miss Dunn, you were asked some questions about whether you saw I think the semitrailer cross the centre line or, sorry, you said you saw the back of the trailer remaining in its lane? A. Yes.
Q. The front of the semitrailer, that is the front of the prime mover could well have crossed the centre line without you noticing it; would you agree with that? A. Yes.”

25 Ms Dunn stated that the sparks she saw were between her and the semi, at the very back of the trailer. Later she said she had just started to come up a grade when she saw the sparks. She was near a street that ran off Stoney Creek Road to the right. A little later, reference was made to photograph 3 and Ms Dunn was asked whether the car came to a stop further down Stoney Creek Road, that is in a position around the corner and further down on the right hand side. She said: “I can’t recall that at all. I can remember seeing the vehicle in the telegraph pole and that’s all I can remember.”

26 She rejected the suggestion that at the time she saw the sparks, if she was indeed two lengths behind the semi-trailer, the semi-trailer had not reached the top of the hill. But then in answer to the question “Because when you first saw the sparks you had only just commenced to go up the rise?” she replied “That’s right”.

27 Having summarised Ms Dunn’s evidence, particularly that part of the evidence where she said she had seen a stationery vehicle in a collision with a telegraph pole at an angle to the kerb so that the rear of the car was situated at about the line separating lanes one and two for the westbound traffic, his Honour said: “The location of the car was then almost opposite the mouth of Staples Street.” His Honour did not explain this finding. Ms Dunn did not mention Staples Street in her evidence. She did, however, say in answer to a question “You say that the distance between where this car was from where you were standing was about a hundred metres? Was it about a hundred metres?”, “Could be.”

Which vehicle crossed the centre line

28 Having dealt with the question of where the impact occurred, Judge Cooper headed the next part of his judgment “Which Vehicle was on its wrong side of the Centre Line?” He did not accept the view of the appellant’s expert that if the appellant had crossed on to its wrong side of the road it would have pushed the respondent’s car to the north. His Honour said:

“70 On behalf of the plaintiff, it is submitted that the defendant deliberately lied when he said that the impact occurred on the straight stretch of road in line with the club house of Bexley Golf Course. He deliberately lied about this because he considered that it was less probable that he would cross to the wrong side of the road on a straight stretch of roadway than at a curve where he had to negotiate the left-hand bend. In short, it is submitted that he lied because of consciousness of his guilt.
71 The difficulty with this submission is that Ms Dunn, whom I accept as an honest witness genuinely attempting to do her best, gave similar evidence to the defendant.
72 But Ms Dunn’s view of the roadway, travelling as she was in the number 1 lane, would have been partially obscured by the semi-trailer in front of her travelling in the number 2 lane. She was not aware of any impact but merely became aware of sparks between her and the semi-trailer. She was then preoccupied with getting out of the way of the vehicle causing those sparks and would not have been aware of her position in relation to surrounding landmarks until after she had returned to her correct side of the road. By this stage she could well have been in the area of the club house and car park. By the time her vehicle stopped for the first time, it was opposite the car park. From this she could assume that the impact had occurred at about the club house. This assumption was wrong but nonetheless honest. The question arises if she could make an honest mistake on this point, then could the defendant be likewise honest in his belief.
73 In answering this question one must take into account the difference in the view which the respective drivers had of the roadway ahead and the surrounding physical features. The defendant was perched up in the cabin of his truck with a very clear view of what was in front of and around him. His evidence was that he was aware of oncoming lights from a distance of about 200 metres and that from about 100 metres down to about 30 or 40 metres he saw the oncoming headlights drifting. He described this as -
‘… a slow drift. It was slowly moving to its right, not fast but slowly moving from that lane across the centre lane.’
74 He said that when the vehicle was about 30 metres away from him, he was travelling 60 to 65 km per hour and moved towards his left. This evidence must be looked at in the context that the 2 vehicles were approaching each other at a combined speed of about 120 km per hour or 33.33 metres per second. One hundred metres would be covered in about 3 seconds and 30 to 40 metres in about 1 second. This seems quite inconsistent with the defendant’s evidence that the plaintiff’s vehicle was slowly drifting towards its right. On the other hand, the plaintiff’s evidence of the impact occurring very quickly is quite consistent with their combined approach speeds.”

29 Up to this point the trial Judge was addressing the submission that the appellant had deliberately lied about where the impact occurred. The difficulty was Ms Dunn’s evidence to like effect. His Honour thought her evidence wrong but honest. This left the question of whether if she could make an honest mistake on the point, the appellant could likewise. The first part of answering this was to deal with the appellant’s evidence and the respondent’s evidence about what happened immediately before the collision. His Honour clearly preferred the respondent’s evidence although this conclusion was not stated expressly. Judge Cooper then said:

“75 Furthermore there are aspects of the defendant’s evidence, which reveal him to be one who regards the rules of the road to be obeyed only if it suits him and throw some light upon his character as a driver. One is in the following passage from transcript pages 199 and 120.
‘Q. Why weren’t you complying with the speed limit? A. I wasn’t going much over it.
Q. You didn’t consider that it would be prudent and safe to drive a vehicle of that size, given its width, and in relation to the width of the lane? A. There was no traffic on the road. It was late at night. I wasn’t going that fast.
Q. And you didn’t consider that it was important then to abide by the speed limit? A. I was driving safely.’ ”

30 The appellant sought and was granted leave to add the following new ground to its notice of appeal.

“3A That His Honour erred in rejecting the evidence of the Appellant because the process by which he reasoned to that conclusion was fundamentally flawed in that:
(i) his reasoning at paragraph 74 of the Judgment misapprehends, misunderstands or misapplies the evidence of the Plaintiff at Black AB 37E-X;
(ii) in breach of s95 of the Evidence Act 1995, his Honour used evidence against the Defendant to prove a particular matter, that is to say, his character as a driver, which was evidence admissible on the issue of the Defendant’s credit but which was not available for use to prove the Defendant’s character as a driver by reason of the provisions of Part 3.6 of Chapter 3 of the said Act (para 75 Judgment).”

31 His Honour’s reasons for judgment continued:

“76 Clearly there was then other traffic on the road, namely the plaintiff’s vehicle and Ms Dunn’s.
77 He also agreed that he gave a statement to an investigator on 13 March 1996, in which he said that he ‘had had heaps of traffic fines for speeding and logbook’.
78 Furthermore, the defendant gave evidence that he had arrived in Sydney from Melbourne about 2.00 am on 12 December, went to the Flemington Markets where he unloaded fruit and vegetables for about half an hour. He then parked his car and had a sleep until about 8.00 am that morning. He then rang the depot manager for Sydney, received some instructions and went to the depot at Flemington, arriving there at about 8.30 am. He was there for about an hour or two after which he was told where he was to pick up a load that day. Pursuant to these instructions, he went to a company at Botany to collect the load, but was told by the dispatch manager that the load would not be ready until late. He then drove down the road, parked his truck and waited for the call. By this stage, it was lunchtime. He had some lunch returned to his semi-trailer and slept on and off during the afternoon for a couple of hours here and there and was reading a book between sleeps. He waited there until about 7.30 or 8.00 pm when he received a phone call. He then returned to the company at Botany, backed into the dock and started to load. Some of the goods were not ready and so it took until about 9.30 pm before his vehicle was loaded and he left Botany. He then set out for Melbourne in the course of which he was travelling west in Stoney Creek Road.
79 He was questioned concerning entries in his Authorised Log Book (exhibit 5), the accuracy of which he is required by law to certify. The entries show him leaving Albury at 9.00 pm on 11 December and stopping at Yass from about midnight until about 2.30 am on 12 December. He agreed that he did not stop at Yass but drove straight through to Sydney. When asked why, he made his false entry, he answered (p 166):

‘Well I drove straight through to Sydney and I put the break there so I wouldn’t show too many hours on my 24 hour period previously.
Q. What was the problem about showing too many hours? A. You can get booked for it.’
80 He also agreed that he made an entry in the log book that he arrived in Sydney about 5.30 am. That was not a correct entry and when asked why he put a false entry in the log book, he replied (p 167):
‘I moved it forward so I could stretch the hours a bit so I wouldn’t have too many hours on the 24 hour period.’
81 It is correct to say that the evidence concerning false entries in the log book were given in chief rather than being elicited in cross examination. I regard that more an indication of the skill of his Counsel than an indication of his credit worthiness.
82 In any event those entries do demonstrate willingness on his part during the preceding 24 hours to forego at least part of the statutory rest periods which the law required to ensure that he does not drive when fatigue could diminish his capacity as a driver.
83 Having regard to all of these matters, I am satisfied on the balance of probabilities that as the defendant was travelling west in the number 2 lane adjacent to the centre line of Stoney Creek Road, Bexley, and as he was approaching the mouth of Wolli Street, his off-side front corner crossed over the centre line of the roadway and collided with the front driver’s side corner of the plaintiff’s car. The probabilities are that this was due to a combination of speed which was excessive in the circumstances and fatigue.
84 This crossing over occurred in the context of the defendant knowing that his vehicle was 8 feet wide and that the lane was 10 feet wide. He was travelling at 60 to 65 km per hour and was going at a speed where he did not take the left-hand curve and so moved to the wrong side of the roadway. Accordingly I find that the defendant was guilty of negligence.”

32 The appellant’s complaint is that the trial Judge relied on evidence of tendency to find that the appellant crossed over the centre line of the roadway and collided with the front driver’s side corner of the respondent’s car.

33 In Chapter 3 of the Evidence Act 1995 “Admissibility of evidence”, Part 3.6 is about the exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule. Part 3.7 is about the exclusion of evidence relating only to credibility and exceptions to the credibility rule. Part 3.8 is about character evidence and the circumstances in which it is admissible despite the hearsay rule, the opinion rule, the tendency rule and the credibility rule. According to the dictionary to the Evidence Act “credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember the facts and events about which the witness has given, is giving or is to give evidence.”

34 In his evidence in chief, the appellant was asked about filling out a log book as required by law with various entries that were knowingly incorrect. Two entries of the log book for the appellant on Monday 11 December 1995 and 12 December 1995 were admitted in evidence without objection. In cross-examination, and without objection, he was cross-examined further about log book entries for 11 December 1995 and it was put to him that some of those entries were false. It was also put to him that there were omissions and that some log book entries on 12 December had been made after the accident. It was put to him without objection that he completed some entries that he knew to be lies. Later in the cross-examination it was put to him that there was nothing in his log book to certify the hours that he had slept. It was put to him, without objection, that he had told the investigator who took a statement from him on 13 March 1996 that he had had heaps of traffic fines for speeding, log book and that he had lost his licence two years ago for three months due to loss of points. The thrust of the evidence was that if he was found at fault on this occasion he could lose points and so he made sure that it was not going to be his fault by saying that the accident happened on a flat stretch of road. Further, the passage which his Honour said threw some light upon the appellant’s character as a driver was put to him without objection.

35 I am satisfied that the evidence adduced in cross-examination from the appellant about his log book, his failure to comply with the speed limit and particularly his false entries about breaks from driving, was led under the exception to the creditability rule on the basis that the evidence had substantial probative value; s103(1) of the Evidence Act. The examination in chief and the cross-examination passed without objection or comment. That being so, since the evidence related only to the creditability of the appellant, Pt 3.6 “Tendency and Co-incidence” did not apply; s94(1). Section 97(1) of the Evidence Act provides:

“Evidence of a character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

36 I am satisfied that the respondent did not at the trial rely upon the evidence that emerged from the examination in chief and cross-examination on the basis that the appellant had a tendency to act in a particular way, as, for example, to exceed the speed limit or to drive on the wrong side of the road. The respondent gave no notice that he intended to adduce such evidence and the Court was not asked to act under s97(1)(b). It is said in the notes to the Supreme Court Practice setting out the Evidence Act at 3865.5:

“The legislative intention appears to be that s97 is confined to situations where the evidence is proffered to prove the existence of a tendency as such. This is consistent with the difference between the relevant expressions in s97(1) (‘to act in a particular way’) and s98(1) [the coincidence rule] (‘did a particular act’). It may be useful to regard s97 as referring to a situation where the matter in issue is the person’s motive or reason for engaging in particular conduct ….”

37 I would assume that in the course of argument the respondent never submitted that the appellant’s evidence about these matters proved that he had a tendency to act in a particular way or to have a particular state of mind. Such an argument would, I assume, have immediately brought forth an objection to the evidence being so used and that would have been the end of the matter, no notice having been given.

38 Thus the appeal turns upon whether the trial Judge on his own decided to so use the evidence and if so, the consequences of his doing so.

39 In para 73 of his reasons for judgment, Judge Cooper quoted a passage from the appellant’s cross-examination. He summarised earlier evidence that the appellant was aware of oncoming lights from a distance of about 200 metres and that from about 100 metres down to 30 or 40 metres he saw the oncoming headlights drifting. He observed that if both vehicles were travelling at 60 km per hour or 33.33 metres per second, 100 metres would be covered in about three seconds and 30 to 40 metres in about one second. It was open to his Honour to conclude that in this timeframe a description of the movement of the respondent’s vehicle as a slow drift towards the right is difficult if not impossible to accept.

40 The respondent’s evidence in chief (part of which was given through an interpreter) (Black AB 36-38) was that he was passing the clubhouse at between 50 and 60 km per hour. Having passed the clubhouse he described the road as a bit downhill. He said: “Hill down. And nearly in the middle, in the middle of the hill and a truck is coming in the double lane and he hit me.” He was in the middle lane when the truck hit him. He was asked whether he had gone over the centre lane and said “No”. He was asked did the accident happen quickly or slowly and he said “No. Very quick.” He was asked whether he was able to move his wheel to the left before the accident and he said “No”. He did not know what part of the truck hit him. He then described what happened thereafter. Amongst other things he could not control the car and was not able to apply the brakes. This account, bearing in mind the time frame, sounds more truthful. The appellant’s argument did not explain in what way it was contended that Judge Cooper misapprehended, misunderstood of misapplied this part of the respondent’s evidence. Under cross-examination, the respondent repeated that he was in the middle lane. Later in cross-examination, he said that he saw the lights of the oncoming truck cross the centre lane line into his lane. It is clear enough, though the trial Judge did not expressly say it, that he preferred the respondent’s account to the appellant’s account of the collision.

41 The trial Judge after examining the evidence of the appellant and the respondent as to what happened immediately before the collision then continued: “Furthermore there are aspects of the defendant’s evidence, which reveal him to be one who regards the rules of the road to be obeyed only if it suits him and throw some light upon his character as a driver.” As I have said, this evidence from the appellant was relied on only as to his credibility.

42 The trial Judge referred to the appellant’s failure to comply with the speed limit, to his statement that he had “heaps of traffic fines for speeding and log book” and to his evidence about the events of 11 and 12 December which his Honour said demonstrated “willingness on his part during the preceding 24 hours to forego at least part of the statutory rest periods which the law required to ensure that he does not drive when fatigue could diminish his capacity as a driver.” I have no doubt that his Honour regarded these matters as going to the appellant’s credibility. When Judge Cooper referred to the evidence about false entries in the log book being given in chief rather than being elicited in cross-examination, his Honour said he regarded this more as an indication of the skill of the appellant’s counsel than an indication of the appellant’s creditworthiness.

43 I am satisfied that all the evidence which went in without objection about these matters went in on credibility. Furthermore, had the respondent attempted to establish a tendency or propensity, relevant to the issue of which of the parties was at fault, it could only have been a tendency or propensity to drive on the wrong side of the road or, alternatively, perhaps, to exceed the speed limit. Nothing of the sort was suggested on behalf of the respondent or by the trial Judge. While it is unfortunate that the trial Judge did not expressly state what is to be implied, namely that he preferred the respondent’s evidence about the position of the vehicles at the time of the collision to the appellant’s, it is plain enough that this is what his Honour did.

44 There was ample and compelling evidence that the collision occurred where the respondent said it did and in the manner that he said it did. Furthermore, there was nothing apart from the evidence of the appellant, with some support from Ms Dunn, to suggest that the point of impact was outside the golf clubhouse and that the respondent’s car, as the two approached each other at about 30 or 40 metres a second, was slowly drifting towards the semi-trailer. There was evidence that the appellant had foregone at least part of the statutory rest periods and it came from his own mouth that he was exceeding the speed limit. I am not persuaded that tendency or propensity played any part in the conclusions that the trial Judge expressed in paras 83 and 84 of his reasons for judgment though I accept that he took account of the evidence that the respondent extracted about the appellant’s credibility in reaching the conclusion he did.

45 The main thrust of the appellant’s argument was directed to the new grounds of appeal 1A and 3A. In my opinion, these grounds of appeal should be rejected. The remaining original grounds of appeal, other than 7 should also be rejected. Nothing was advanced which would permit this Court to interfere with the trial Judge’s assessment of the contributory negligence so as to hold the respondent 40 per cent responsible. In my opinion, the appeal should be dismissed with costs.

Cross-appeal

46 The trial Judge observed that the curve in Stoney Creek Road at its junction with Wolli Street was sufficiently gradual to enable the driver of an eastbound vehicle to see an oncoming westbound vehicle at least 100 metres away. He was satisfied on the balance of probabilities that had the respondent kept a proper lookout he could have seen the oncoming semi-trailer approaching him and occupying most of its traffic lane next to the centre line.

“In addition he ought to have appreciated that the semi-trailer may not take the curve within its traffic lane and that there was at least a likelihood that it could come cross onto its incorrect side of the road. The taking of reasonable care for his own safety required him to move to his left so as to leave the semi-trailer room to pass safely. The plaintiff failed to take such action.”

47 I read this as a general injunction against drivers not merely to keep within the traffic lane but to keep some distance from the border in case oncoming cars stray out of their traffic lanes. In Sibley v Kais (1967) 118 CLR 424 (which concerned vehicles colliding at an intersection) the High Court said at 427:

“The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”

48 This was said to be consistent with what Jordan CJ had said in this Court in Banco in Trompp v Liddle (1941) 41 SR (NSW) 108 at 109:

“A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not. Thus, the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop.”

49 It was these principles that no doubt Judge Cooper had in mind when considering contributory negligence. While for my own part I would not have been persuaded, if sitting at the trial, that in the circumstances of this collision the respondent was guilty of contributory negligence, this was a matter for the trial Judge. No error in his Honour’s approach or conclusion has been demonstrated. In my opinion, the cross-appeal should be dismissed with costs.

Orders

50 I propose the following orders:

1. Appeal dismissed with costs;

2. Cross-appeal dismissed with costs.

51 HODGSON JA: : I agree with the orders proposed by Sheller JA, and substantially with his reasons.

52 The new ground of appeal referred to in par.[6] of Sheller JA’s reasons has no substance. Two witnesses identified a particular telegraph pole as the position where the respondent’s car came to rest, and that pole was clearly identified by a plan as being nearly opposite Staples Street. There was no cross-examination, and no submission on behalf of the appellant, to suggest the possibility of error on their part. Having regard to these matters, and to the exchange during submissions referred to by Sheller JA, the primary judge’s statement that it was not in dispute that the plaintiff’s vehicle came to rest approximately opposite Staples Street was amply justified; and in circumstances where much else was in dispute, it was an appropriate starting point from which to consider the matters in issue.

53 Mrs. Dunn’s evidence, although accepted as given honestly, could have little weight in favour of the appellant. She must have been more than two car lengths behind the appellant’s truck, because the respondent’s car came round the back of the appellant’s truck and passed across in front of her, causing her to swing to her right to avoid it. She had been in the kerb lane, while the appellant’s truck was in the outside lane. Mrs. Dunn could not see the position of the appellant’s prime mover. The front of the prime mover could have deviated from its path by (say) about half a metre, so as to put the right-hand edge a little on the wrong side of the road, by not immediately following the left-hand curve, and then recovered in time to prevent the trailer, or at least its rear wheels, deviating substantially.

54 The primary judge was plainly justified in concluding that the impact occurred at the curve of the road in the vicinity of Wolli Street, and not in the straight section of road near the golf club house as asserted by the appellant. The primary judge was also justified in questioning whether this could be an honest mistake by the appellant, in circumstances where he had a clear view of what happened. Plainly the primary judge considered this matter as telling strongly against the reliability of the appellant’s evidence.

55 The issue being addressed by the primary judge at this stage was which vehicle was on its wrong side of the centre line; that is, in substance, should the evidence of the appellant or the respondent on this matter be preferred. Before proceeding to resolve this question, the judge referred to aspects of the appellant’s evidence “which revealed him to be one who regards the rules of the road to be obeyed only if it suits him and throw some light upon his character as a driver”. It was this statement that the appellant relied on as showing that the primary judge treated this material incorrectly as tendency evidence.

56 However, the primary judge went on to refer to evidence relevant to the appellant’s reliability as a witness (false entries in his log book) and to fatigue at the time of the accident (willingness to forego at least part of the rest periods required by law). Complaint is made about the use of the word “willingness” as again suggesting incorrect tendency reasoning; but plainly the primary judge here was quite properly referring to material concerning this particular occasion suggesting that the appellant was likely to have been fatigued. There is reference in the previous paragraph of the judgment that indicates that the primary judge was considering the false entries in the log book as damaging to the appellant’s credit-worthiness, little ameliorated by the circumstance that the making of these entries was volunteered in evidence in chief.

57 In this context, the primary judge’s reference to the appellant’s “character as a driver”, although perhaps unfortunately expressed, is properly construed as referring to the appellant’s reliability as a witness concerning his performance as a driver, both in terms of honesty and in terms of the reliability of his expressions of opinion on driving matters such as speed, safety and the position of his vehicle on the road.

58 In my opinion, the primary judge’s reasons justified his preference of the respondent’s version of the accident, and are not vitiated by error.

59 IPP JA: Save in one, but fundamental, respect I agree with the reasons of Sheller JA and Hodgson JA. This respect concerns the use by the primary judge of his findings as to the character of the respondent “as a driver”.

60 The judge said:

“Furthermore there are aspects of the defendant’s evidence, which reveal him to be one who regards the rules of the road to be obeyed only if it suits him and throw some light upon his character as a driver. One is in the following passage from transcript pages 199 and 120.
“Q. Why weren’t you complying with the speed limit?
A. I wasn’t going much over it.
Q. You didn’t consider that it would be prudent and safe to drive a vehicle of that size, given its width, and in relation to the width of the lane?
A. There was no traffic on the road. It was late at night. I wasn’t going that fast.
Q. And you didn’t consider that it was important then to abide by the speed limit?
A. I was driving safely.”

61 Having noted that the appellant told an investigator that he “had had heaps of traffic fines for speeding and log book”, the judge referred to false entries in the appellant’s log book and said:

“It is correct to say that the evidence concerning false entries in the log book were given in chief rather than being elicited in cross examination. I regard that more an indication of the skill of his Counsel than an indication of his credit worthiness.
In any event those entries do demonstrate willingness on his part during the preceding 24 hours to forego at least part of the statutory rest periods which the law required to ensure that he does not drive when fatigue could diminish his capacity as a driver.”

62 The judge then concluded:

“Having regard to all of these matters, I am satisfied on the balance of probabilities that as the defendant was travelling west in the number 2 lane adjacent to the centre line of Stoney-creek Road, Bexley, and as he was approaching the mouth of Wolli Street, his off-side front corner crossed over the centre line of the roadway and collided with the front driver’s side corner of the plaintiff’s car. The probabilities are that this was due to a combination of speed which was excessive in the circumstances and fatigue.”

63 The judge did not find that the respondent was an honest witness while the appellant was not. He did not state that the appellant was not a credible witness. He did not make a credibility finding in favour of the respondent. Rather, his Honour, as he said, had regard to “all” of the matters he mentioned and was persuaded by them that the version of the respondent was to be believed. “All” of the matters included the appellant’s “character as a driver” and the false entries he made in his log book which demonstrated “willingness on his part” to forego part of the statutory rest periods. As the judge explained his process of reasoning, he arrived at his decision by weighing up and balancing the factors that he mentioned and taking the probabilities into account.

64 As Sheller JA has pointed out, the respondent at the trial did not suggest that any of the evidence could be used as proof that the appellant had a tendency to act in a particular way. Section 97(1) of the Evidence Act 1995 (NSW) was not invoked.

65 Nevertheless, the judge, of his own accord, in making the crucial factual finding in the case, had regard to the appellant’s “character as a driver”. I do not agree that this phrase can be understood as meaning that the judge was simply referring to a matter that was material to the credibility of the appellant.

66 Firstly, the judge, in his own words, was concerned with the appellant’s character ”as a driver”, not as a witness. This is a clear indication that the judge was taking into account, as he put it, the appellant’s characteristic of obeying the rules of the road only when it suited him to do so. The willingness of the appellant to infringe the rules of the road was not a matter relevant to his credibility as a witness.

67 Secondly, in context, the judge’s reference to the “heaps of traffic fines” incurred by the appellant was in support of his Honour’s view of the appellant’s character as a driver, not his truthfulness as a witness. After all, as I have observed, the judge made no express credibility finding and did not come to his conclusion primarily on credibility grounds. In addition, as Dixon J remarked in Bugg v Day (1949) 79 CLR 442 (at 467):

“[A]t common law a conviction of a witness for an offence could not be used for the purpose of discrediting him if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is to say in his character or trustworthiness as a witness of truth. Traffic offences cannot often fulfil this condition.”

68 Thirdly, as a matter of language, the “willingness” on the part of the appellant, (indicated by the false logbook entries) “to forego at least part of the statutory rest periods” concerned the appellant’s character, not his credibility and not his state of fatigue or otherwise at the relevant time. I accept that this particular passage in his Honour’s reasons may have been intended to mean that, because of the appellant’s willingness to forego the statutory rest periods, he was in fact fatigued. Nevertheless, in my view, the passage must be coloured by the preceding reference to the appellant’s character.

69 Fourthly, I do not think that the fact that the respondent made no submission about the appellant’s propensity to infringe traffic rules indicates, in the face of the unambiguous reference in his Honour’s reasons to the appellant’s “character as a driver”, indicates that the judge was intending a different meaning to what would ordinarily be regarded as plain.

70 Thus I do not think that his Honour’s remarks can be explained as being “unfortunately expressed”. In my view, he had regard to impermissible material and the appellant thereby lost the chance of a verdict in his favour. I would uphold the appeal with costs and order a new trial.

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Last Modified: 09/20/2004