Ross v Insurance Commission of Western Australia
[2009] WASCA 91
•22 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROSS -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2009] WASCA 91
CORAM: WHEELER JA
BUSS JA
BEECH AJA
HEARD: 16 APRIL 2009
DELIVERED : 22 MAY 2009
FILE NO/S: CACV 51 of 2008
BETWEEN: ANASTASIA ROSS
Appellant
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
Citation :ROSS v INSURANCE COMMISSION OF WESTERN AUSTRALIA [2008] WADC 67
File No :CIV 1667 of 2006
Catchwords:
Appeal - Findings of fact based on credibility - Claim that appellant injured as a result of negligence of unidentified driver of a car - Trial judge not satisfied that appellant's injuries were caused by a collision in the manner alleged by the appellant - Claim dismissed - Whether appellate intervention justified - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K J Bradford
Respondent: Mr M J Hawkins
Solicitors:
Appellant: Bradford & Co
Respondent: Talbot Olivier
Case(s) referred to in judgment(s):
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
R v Golightly (1997) 17 WAR 401
WHEELER JA: I agree with Beech AJA.
BUSS JA: I agree with Beech AJA.
BEECH AJA:
Introduction
The essential issue in this appeal is whether findings of fact made by the trial judge, based in large part on an assessment of the credibility of the appellant, should be overturned.
The appellant was the unsuccessful plaintiff in an action in the District Court against the respondent, the Insurance Commission of Western Australia (ICWA). The appellant sued ICWA on the basis that she alleged that she was injured as a result of the negligent driving of a motor vehicle by an unidentified person (see s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA)).
The nub of the appellant's case was that while she was crossing a road on foot she was struck on the right buttock by a car which did not have its headlights on. The trial judge was not satisfied that the alleged accident happened at the time and place or in the manner or way alleged by the appellant and, accordingly, dismissed the claim.
The appellant contends that the trial judge made errors in coming to that conclusion. For the reasons that follow, I am not persuaded that this court should interfere with the trial judge's factual findings.
The appellant's grounds of appeal and submissions do not readily fit within the framework of the principles applicable to an appeal from findings based upon credibility. Many of the appellant's submissions appear to proceed on the erroneous basis that it is enough for her to show that another view of the facts was reasonably open. It is basic principle that that is not enough in order for an appeal court to overturn a finding of fact based on credibility.
I will outline the legal principles and summarise the trial judge's reasons before turning to the grounds of appeal.
Legal principles
The appeal is by way of rehearing. Because the appellate court considers the appeal on the basis of the record there are natural limitations in the rehearing before the appellate court. Within those constraints, the appellate court is obliged to conduct a real review of the trial. Appellate courts must weigh conflicting evidence and draw their own inferences and conclusions, although they must always bear in mind that they have not seen or heard the witnesses. An appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or found by the trial judge. A finding of fact by a trial judge based on the credibility of a witness may be set aside on appeal only where incontrovertible facts or uncontested testimony demonstrate that the trial judge's conclusions are wrong, or where it is concluded that the finding of the trial judge was glaringly improbable or contrary to compelling inferences. See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] ‑ [29]; Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460 [65] - [67].
In determining the facts a court will take into account more than simply its subjective assessment of the credibility of a witness. Among the matters to be taken into account in assessing a witness' evidence are contemporary materials, the objectively established facts and the apparent logic of events: Fox v Percy [31].
The trial judge's reasons
His Honour began by identifying the essence of the appellant's case. In summary, the appellant's case was that she was injured when she was struck by a car which did not have its headlights on while she was crossing Princess Road in Balga.
The trial judge then summarised and recited, in considerable detail, the evidence of the witnesses: [6] ‑ [86]. No complaint is made by the appellant as to the accuracy of his Honour's detailed statement of the evidence. In the course of this outline his Honour commented on particular parts of the evidence. Complaints are made as to some of those comments. I will return to those matters.
His Honour accurately outlined the appellant's evidence‑in‑chief relating to the alleged accident (see ts 39 - 46) at [10] ‑[18]. It may be summarised as follows.
The appellant was walking home from the local shops at about 8.00 pm. It was very dark. She came to Princess Road to cross it. (Other evidence established that Princess Road has a single 4 m wide lane on each side separated by a 2 m wide centre section which has intermittent islands or median strips.) Before crossing the first lane of Princess Road the appellant saw a four‑wheel drive vehicle. After that passed she crossed the first lane of Princess Road to the island kerb. She was on the kerb on the edge of the island on a slight angle in the middle of the road. She stopped again, looked left and right and saw nothing. She then proceeded to walk about three steps 'on an angle' to cross the road to go to the footpath on the other side of the road. After three steps (the trial judge mistakenly said 'five steps', but nothing turns on this) she felt something very hard on her right buttock and was thrown two or three metres. She got up, turned around and saw a four‑wheel drive utility vehicle. It did not have its headlights on. She then walked back across Princess Road to where she had just come from. The driver of the car turned around and parked on that side of the road. He put his spotlight on. The driver said, 'I'm sorry, I didn't see you.' No more than a minute later, a man driving a red car stopped. The appellant asked the driver of the four‑wheel drive for a pen and a cigarette. She asked both of the drivers for their names and telephone numbers, which they gave her by writing them down on two separate pieces of paper. She later discovered that both names and numbers were false.
The appellant was cross‑examined at length on what was said by the respondent at trial to be inconsistent statements made by her as to how she came to have the injuries of which she now complains. The trial judge ultimately placed significant weight on his finding that there were important inconsistencies in the various versions of events the appellant had given, and what he found to be the unsatisfactory attempts at an explanation of those inconsistencies by the appellant. Particular 1.1 complains that the judge placed undue weight on the inconsistencies. I will outline the evidence and the trial judge's findings in more detail in dealing with particular 1.1 of the grounds of appeal.
After his outline of the evidence, his Honour proceeded to set out his observations in relation to the evidence under the heading 'Discussion': [87] ‑ [106]. His Honour's conclusions were set out at [103] ‑ [106] in the following terms:
In arriving at my findings of fact, I have placed a great deal of weight on my observation on the way in which the plaintiff gave her evidence and, in particular, her demeanour and the way she responded to questions in cross-examination. I have already expressed my views in this regard above. I am not persuaded that the plaintiff is a reliable witness and I am not persuaded by her that an accident occurred in the manner alleged. In my view, on occasions, she did not give her evidence openly and forthrightly. Sometimes her answers were non-responsive to the question and sometimes she was evasive (by asking a question in reply) and on other occasions she took advantage of the documentary evidence in front of her to delay the process. In my opinion there was a definite contrast between her evidence in relation to the circumstances of the accident and that concerning her medication regime and the nature of the medicines she was using for her symptoms. In respect of the latter, she was very clear and articulate as to precisely what drugs and what dosages and when they were prescribed.
My overwhelming subjective impression is that the plaintiff is not a reliable witness. I also find the plaintiff is not a credible witness in the sense that she has not persuaded me on the balance of probabilities that an accident occurred in the manner alleged. I am left in considerable doubt as to how she came by the injuries she had when she presented to Royal Perth Hospital on 24 November 2005. I accept the medical evidence that the injuries suffered by the plaintiff might be consistent, in particular the resultant haematoma on the right buttock, with having been struck by a motor vehicle, but as to how, when and where this might have occurred I am not able to make any finding.
I am not persuaded on all the evidence that the alleged accident happened at the time and place, or in the manner or way contended for by the plaintiff. I accept usually there are some inconsistencies in a body of evidence, whether minor or major. Sometimes there are obvious explanations, or possibilities which cannot be ruled out as explaining the inconsistencies. But it is not for the Court to speculate in every instance what the precise factual position was or may have been.
In this case there is a totality about the evidence which I find unpersuasive and unconvincing. In respect of some particular issues I have given reasons for my rejection of the evidence, in other parts the difficulty is caused simply because the plaintiff has given two or more inconsistent versions of the same facts. For example, as to where she was before she attempted to cross the road or whether the [driver's] headlights were on at any time. As counsel for the plaintiff said, it is always necessary to balance the inconsistencies, but that exercise in this case does not, in my opinion, come up in favour of the plaintiff. The scales are not assisted by the next issue to which I refer. I note this is not a case of 'divergent cases' as considered by Gleeson CJ and Heydon J in Suvaal v Cessnock City Council [2003] HCA 41 at [36], but merely a case of the plaintiff needing to satisfy the Court on balance on her own evidence that the events occurred.
It can be seen from these passages that his Honour took into account a range of matters in concluding that he was not satisfied that the alleged accident happened in the manner and at the time and place alleged by the appellant. He took into account some objectively identified matters, such as the various inconsistencies in the versions given by the appellant. (In doing so, he correctly identified that not all inconsistencies necessarily undermine the reliability of a witness's evidence.) The trial judge also took into account his impressions of the appellant and her manner and demeanour in the course of giving evidence. His remarks in that regard were reasonably specific in identifying the aspects of the appellant's demeanour to which he gave weight.
His Honour then dealt with the respondent's submission that an adverse inference should be drawn from the fact that the appellant's mother was not called to give evidence: [107] ‑ [113]. That is the subject of particular 1.8 of the appellant's grounds of appeal.
At [114] ‑ [121] his Honour set out his findings of fact. At [114] he summarised the effect of the appellant's evidence. He reiterated at [115] that he was not persuaded on the balance of probabilities that the appellant was injured as a result of a motor vehicle accident occurring in the way she contended. His Honour concluded [116] that he was unable, having considered all the evidence, to make any finding of fact:
(a)as to the position of the plaintiff immediately before the alleged impact of the [driver's] vehicle, except that her back was partially facing any oncoming traffic because she was walking across the road at an angle;
(b)that the plaintiff stopped and looked left and right to check for traffic before crossing over the median strip in the middle of Princess Road;
(c)that the headlights of the [driver's] motor vehicle were not on at the time of the collision with the plaintiff, or that the [driver] put the headlights on shortly before the witness driver stopped to render assistance, or that the [driver] turned a 'spotlight' onto the plaintiff; or
(d)that the plaintiff suffered any increased or ongoing pain over that already suffered by her prior to the accident, except for that which would have occurred at the time as a direct result of her injuries.
At [118] his Honour made an observation which is the subject of particular 1.6. I will deal with that observation when I deal with that ground of appeal.
His Honour made the following comments at [119] of his reasons:
I accept the plaintiff's submission that I do not need to be persuaded precisely 'how' the accident occurred, but unfortunately there is so much inconsistency in the plaintiff's account of events, that I am unable to find whether any accident occurred at all, let alone in the place and way described by the plaintiff. In this case the plaintiff's answers to interrogatories might reasonably be expected to have set out a cogent and definitive account by the plaintiff of what occurred. The plaintiff had every opportunity with the assistance of her solicitors to make plain and clear what she says happened. Instead, the answers caused further confusion to the confusion already created by the plaintiff's oral testimony while in the witness box.
The statement by his Honour that he was unable to find whether any accident occurred at all appears to be the foundation of ground 1. I will return to that in dealing with ground 1.
His Honour made a provisional assessment of damages of $7,500 for pecuniary loss and $29,300 for non‑pecuniary loss. There is no challenge to the assessment. His Honour reduced the amount of the non‑pecuniary loss by 50% on grounds of the plaintiff's contributory negligence [129]. The finding of contributory negligence is the subject of grounds 2 and 3.
His Honour concluded at [131] by stating that he was not satisfied on the balance of probabilities that the appellant was 'struck by a motor vehicle being driven by an unidentified driver, in the manner alleged, while she was crossing Princess Road on the evening of 24 November 2005'. Further, he said that, in any event, he was not persuaded on the appellant's own evidence, assuming that the accident occurred, that the driver did not have his headlights on at the time of the alleged accident [132]. Accordingly, his Honour dismissed the appellant's claim.
Ground 1
Ground 1 contends that the 'finding by the Learned Trial Judge that the Appellant had not established that an accident happened at all was wrong in fact and in law and contrary to the evidence'. Eight particulars are set out under ground 1. I will deal with the individual particulars later in these reasons.
Ground 1 must fail because it is premised on a misconception of what the critical findings of the trial judge were. Ground 1 asserts that the trial judge found that the appellant had failed to prove that an accident happened at all. The critical issue for the trial judge, as his Honour clearly recognised, was not whether an accident happened at all but whether an accident happened in the circumstances and manner described by the plaintiff. His Honour found that he was not satisfied in that respect. In my opinion, that is plain from a reading of his Honour's reasons as a whole. A number of parts of his Honour's reasons support that conclusion.
Paragraphs 103 ‑ 106 of the trial judge's reasons are set out earlier in these reasons. In my opinion, it is plain from these passages that his Honour focused on the question of whether he was satisfied that the alleged accident happened at the time, place and in the manner contended by the appellant. Essentially, because he did not find the appellant to be a reliable witness, he was not so satisfied.
Further, at [115] his Honour reiterated that he was not persuaded on the balance of probabilities that the appellant was injured as a result of a motor vehicle accident occurring in the way that she contends.
See also to like effect [131] and [132].
At [119] his Honour made the observation which would appear to be the foundation of ground 1. There his Honour stated that he accepted the appellant's submission that he did not need to be persuaded precisely 'how' the accident occurred, but stated that there was so much inconsistency in the appellant's account of events that he was unable to find whether any accident occurred at all, let alone in the place and way described by the appellant.
This was the only comment by his Honour on the question of whether any accident had occurred at all. It is clear from a reading of the reasons as a whole that his Honour's focus was squarely upon the question of whether the accident occurred in the place and way described by the appellant. His Honour's reference to whether any accident occurred at all was said by way of emphasis of his conclusions on the real question of whether the accident had occurred in the place and way described by the appellant. The observation at [119] does not reveal any error.
Particular 1.1
Particular 1.1 alleges that the trial judge placed undue weight on inconsistencies in the appellant's evidence when he had found that she was in a state of shock as a result of recently being knocked over.
The trial judge gave significant weight to various forms of inconsistency relating to the appellant's evidence. These included internal inconsistency between different parts of the appellant's evidence on the same topic; and inconsistency, in various respects, between the appellant's evidence and:
(a)answers to interrogatories she had sworn;
(b)her report to the police; and
(c)a written statement made to an insurance assessor.
In my opinion, for the reasons that follow, it cannot be said that the weight given by his Honour to the inconsistencies was 'undue'. In other words, no error is revealed by his Honour's reliance on the inconsistencies which he identified.
It was a general theme of the appellant's oral submissions at the hearing of the appeal that all the appellant needed to establish, in order to succeed at trial, was that:
(1)a car collided with the appellant causing the injury to her right buttock; and
(2)that collision was caused by the negligence of the driver in not having the car's headlights turned on when it was dark.
That may be accepted. However, the only evidence of the second of those matters was the evidence of the appellant as to how the accident occurred. Thus the trial judge was entitled, indeed obliged, to pay careful attention to the appellant's evidence as to how the accident occurred and to any inconsistencies in her oral evidence, and as to any inconsistencies between her oral evidence at trial and other versions she had given of how she received her injuries.
I have already summarised the appellant's evidence‑in‑chief: see [14].
On 14 September 2007 the appellant swore answers to interrogatories. Interrogatories 1, 2, 3 and 7, and the answers to those interrogatories, were as follows:
Interrogatory 1
Whereabouts on the roadway did the collision occur stating how far you were from the edge of the median strip on Princess Road at the point of impact?
Answer 1
The collision occurred approximately 50 cm from the median strip on Princess Road.
Interrogatory 2
In what direction were you facing just prior to the collision?
Answer 2
I was facing towards the footpath.
Interrogatory 3
Were you walking or were you standing still at the time of the collision?
Answer 3
I was standing still.
Interrogatory 7
If you did not see the vehicle until after the collision, how long after the collision was it that you first saw it and where was it and in what direction was it facing?
Answer 7
I saw the vehicle approximately 2 to 5 seconds after the collision. When I first saw the vehicle it had turned around and was on the opposite side of the road.
These answers to interrogatories were each put to the appellant in the course of cross‑examination. Her responses are accurately summarised by the trial judge at [29] ‑ [33]:
The plaintiff was then cross-examined by reference to her sworn answers to interrogatories made on 14 September 2007. In her answer to the first interrogatory, the plaintiff said the collision occurred about 50 cm from the median strip on Princess Road. In evidence she maintained she 'went around the kerb on an angle to cross the road' and said that her answer to the first interrogatory was incorrect and that 'about three feet' was the true answer. Her explanation was that a mistake must have occurred.
She was then asked about her answer to the second interrogatory to the effect that she was 'facing towards the footpath' just prior to the collision. In her oral evidence in court on this issue she maintained she was facing 'that way' but indicated at an angle, before eventually conceding that she 'was on an angle facing that way'. On being pressed in relation to the incorrectness of this answer, the plaintiff said:
'To tell you the truth, I've never even seen this page before in my life … I haven't seen these. I don't know what's going on.'
The plaintiff said she did not see or hear the vehicle which struck her and accepted that there was no reason to stop walking across the road because she did not see anything.
The plaintiff also disagreed with the answer she gave to the third interrogatory namely, 'I was standing still' in response to the question of whether she was 'walking or were you standing still at the time of the collision?' In oral evidence she maintained she was walking at the time of the accident (although she later gave evidence that she hesitated immediately before she was struck and did a slight turn to her left). Although she confirmed it was her signature at the foot of the page, she 'did not know where the standing still came from' and regarded this as a silly thing to be doing.
During cross-examination about other answers in the interrogatories, the plaintiff said that the vehicle which struck her did not have its headlights on but did a U-turn and put a 'spotlight' on her but 'not his headlights'. This was clarified by counsel in light of the plaintiff's initial evidence that the [driver] on doing a U-turn had put his headlights on. The plaintiff's oral evidence on this issue was unclear and very unsatisfactory. I understand her final position to be that the defendant driver put a spotlight on and not his headlights. I note that in her statement to the defendant's insurance investigator she said 'another car arrived and, just before this, the four-wheel driver turned on his headlights'. Relevant to this issue also is the plaintiff's sworn answer to interrogatory 7 that she first saw the [driver's] vehicle when it had 'turned around and was on the opposite side of the road'. (underlining in original)
His Honour evidently found the appellant's attempts (at ts 68 ‑ 79) at explanation for the inconsistencies in her answers to interrogatories to be unsatisfactory. He was entitled to so find.
The appellant made a handwritten statement to police on 28 November 2005, four days after the alleged accident. In the statement she said that she was 'struck by a four‑wheel drive on my right side of my upper leg'. She said in evidence during cross‑examination that this should have been a reference to her right buttock.
She was cross‑examined at some length on the question of how she could have been struck on her right buttock, given that she was crossing from the island to the side of Princess Road when the accident is said to have happened. As one moves from the island to the side of the road any oncoming traffic would, of course, be approaching from the left. In those circumstances, it is difficult, to say the least, to understand how any impact from a car would have been to the right buttock. The appellant's evidence in response to questions on this topic was, in my respectful opinion, difficult to follow; see ts 85 ‑ 88, parts of which are summarised and set out in the trial judge's reasons at [36] as follows:
'… the left side of your body was facing the oncoming traffic in that lane, wasn't it? ‑ On the first or second step perhaps, yes. It must have been. And then I took a third ‑ oh dear God. As I said, I went around the verge of the kerb. Something said, 'Don't go straight across the road', in my intuition. And then I took one, two steps near the kerb because I felt that something bad was about to happen or something said to me, 'Do not cross the road straight'. And then I took a little slight ‑ on the third or fourth step I slightly turned to go onto the part and that's when impact happened. Yes, I did go straight one or two times ‑ two steps, one or two steps, but the third or fourth step is when I verged to go like that.
So your evidence is now that you took one or two steps in a straight line across Princess Road? ‑ As far as I can remember.
And then you took another step in a different direction? ‑ Verge to go. It's like - I'll show you - one, two, three. Understand me? The impact happened then on the very last step.
You seem to be depicting by your left hand movement that your movement was towards your left, after the first two steps. Is that what you're saying? - Towards my left? What are you trying to say, sir? I just explained to you.
Yes, that's right? - I just said to you what happened.
What I'm trying to do is to put into words what your hand movements were, and your hand movements were ---? ‑ Yes, this is the island ---
Just let me finish? - Sorry.
Just let me finish. Your hand movements were that you seemed to move to your left after you took the first two steps. Is that what happened? ‑ Moved to my left?
Yes? - I'm moving around the kerb.
Well, which way did you move? - Right, and then I turned left.
I see? - You understand now?
I see. Well, I think I do? - That's when the impact happened.'
His Honour found that this evidence was an example of the appellant attempting to reconstruct what happened so as to explain away a perceived difficulty in her case. In my opinion, that conclusion was amply justified.
In the end, the appellant was saying in her evidence during cross‑examination that she turned left before the car hit her. That would not explain how she was hit on the right buttock.
A number of other aspects of what she said in her police statement were the subject of cross‑examination (ts 88 - 94). His Honour's findings in relation to these matters at [37] ‑ [41] were well open to him to make.
Thirdly, the appellant was cross‑examined on the written statement she made to an insurance assessor. In that statement she said that she was 'hit from behind on my bum'. She said in evidence that she was walking along the middle section of Princess Road, with the traffic coming from behind her, and then turned to the left to cross to the footpath and was then struck by the motor vehicle (ts 115).
In the statement to the insurance assessor, the appellant had said that the driver of the other car turned his headlights on. The driver doing a U‑turn was not mentioned in that statement.
At [49] ‑ [51] his Honour set out his conclusions in relation to the plaintiff as a witness and the relevance of the inconsistencies in the version of events she had given.
In view of the nature of this case and in particular because no independent witnesses to the accident are available, I paid careful attention to the way in which the plaintiff gave her evidence and her response, and reaction, to the numerous inconsistencies in the versions contained in the police report, her sworn answers to interrogatories and her declared statement to the insurance investigator. The plaintiff was naturally defensive about the inconsistencies. She was quick to offer an explanation which was generally that she was still in a state of shock as a result of the accident. This was the principle explanation for the statements she made in her police report four days after the accident. With respect to the insurance statement, she was adamant that the investigator should have informed her that she should not have signed the document without first seeking her own legal advice, and she maintained she had not been given a copy of the signed statement. In respect of her answers to interrogatories, she protested at one stage that she had never seen the relevant page in her life, and that she did not know what was going on.
When confronted with her prior inconsistent statements, the plaintiff went through a process of reconstruction by reading out aloud (sometimes not always accurately) the relevant portion. She maintained that she did not need to have regard to these statements to know what happened, on occasions, when she was in an area of consistent evidence. When confronted with different versions, she was sometimes evasive and did not answer the question, and often resorted to diversion by asking a question of counsel herself. She volunteered reasons why something had or had not occurred or a reason why she had said something in an earlier statement which was inconsistent with her oral testimony. Often it was necessary to remind her to listen to the question and to answer the question.
I find that the plaintiff was not a reliable or persuasive witness. On occasions she attempted to confuse the position by giving irrelevant answers to the question. Often her answers were not responsive. I am satisfied the plaintiff is an intelligent woman and reject any submission that she did not fully appreciate the importance of her evidence being truthful or the exact meaning of the questions put to her. She was too concerned to understand what lay behind a question or where the question might be leading to be regarded as an open and frank witness doing her best to assist the court.
These conclusions were well open to the trial judge. They do not reveal any error.
Counsel for the appellant submitted that the inconsistencies in the appellant's versions of events were only as to matters of 'fine detail'. I do not accept that submission. The inconsistencies related to topics including:
(a)what part of her body was struck by the car;
(b)the direction from which she was struck;
(c)how far she had moved from the middle of the road before she was struck;
(d)whether she was stationary or moving when struck;
(e)the direction she was facing when struck;
(f)how she could have been struck on the right buttock as she crossed from the centre of the road to the side of the road;
(g)whether she came from the island, or had walked along the centre section without going on the island, immediately before she attempted to cross from the middle of the road.
Many of these matters are capable of being significant individually. Taken together, it was well open to the judge to view these inconsistencies as very significant.
The appellant's written and oral submissions on appeal complain of observations made by the trial judge (at [15], [16], [18], [27]) as to aspects of the appellant's evidence. The appellant submitted that these observations were indicative of an unfair scepticism on the part of the judge. I do not accept that submission. These observations do not reveal any error. His Honour was having regard to the apparent logic of events in considering the credibility of the appellant's versions of events. His Honour was entitled to do so: Fox v Percy [31].
The appellant also complains, in her oral submissions, of the trial judge's rejection at [35] and [43] of particular aspects of her evidence. The question on appeal is not whether a different view was open; it is whether the trial judge was entitled to come to the conclusion to which he came. I am satisfied the trial judge's conclusions on these aspects of the appellant's evidence were open. For example, the appellant's evidence that there were two tyre marks on the kerb came out for the first time in cross‑examination in relation to apparent inconsistencies between her police statement and her evidence. In the circumstances it seems to me to have been open to the trial judge to reject that evidence.
Particulars 1.2, 1.3, 1.4 and 1.5
These particulars are in the following terms:
1.2It was glaringly improbable that the Appellant was not knocked over by a car.
1.3The injury to the Appellant and its aftermath was consistent with the Appellant having been struck by a motor vehicle.
1.4It was never suggested to the Appellant in cross‑examination that there was no collision with a motor vehicle at all, or that she had fabricated the accident.
1.5None of the inconsistencies observed by the Learned Trial Judge detracted from the probability that there had been:
•Car versus pedestrian collision; and
•Injuries consistent with such collision; and
•A vehicle without headlights on.
These particulars suffer from the same flaw as the substantive ground 1. They are premised on an assumption that the action failed because the trial judge found that the appellant had not been injured in a collision with a car. That is a false premise. The action failed because the judge found that he was not satisfied that the appellant was injured as a result of a collision which occurred at the time, place and in the manner alleged by the appellant.
Thus the assertion in particular 1.2, even if it were accepted, is not to the point. As to particular 1.3, the judge accepted that the appellant's injury was consistent with her having been struck by a motor vehicle [104], but found that he was not satisfied as to how, when and where this had occurred. For corresponding reasons, particular 1.4 is not to the point.
In my opinion, particular 1.5 involves flawed reasoning. A critical issue was whether any collision between a car and the appellant had involved a car with its headlights off. The medical evidence provided some support to conclude that it was likely that a collision had occurred between the appellant and a car. Neither the medical evidence nor any other evidence, apart from the appellant's evidence, affected the probability of whether such a car had its headlights on or off. As I have said, the only evidence bearing on whether such a car had its headlights off was that of the appellant. In determining whether to accept that evidence his Honour was entitled to have regard to the inconsistencies already referred to.
Particular 1.6
Particular 1.6 is as follows:
1.6The finding by the Learned Trial Judge that it was more probable than not that the vehicle had its headlights on was based on erroneous inferential reasoning that it was unlikely because it was dark. Moreover, there was no evidence to the contrary.
This particular complains of a finding said to have been made by the trial judge that it was more probable than not that the vehicle had its headlights on. The trial judge made no such finding. At [118] the trial judge observed that the fact that it was dark would, without regard to any other evidence, lead to an inference that it was more probable than not that the driver had his headlights on. That falls well short of a finding that it was more probable than not that the driver had his headlights on. Further and in any event, the observation at [118] must be read in the context of the reasons as a whole, including the critical findings at [105] and [115] to which I have already referred.
Particular 1.7
Particular 1.7 is as follows:
1.7The Learned Trial Judge should have found on the balance of probabilities that the Appellant had been struck by an unlit motor vehicle at night and that the Respondent was liable for the negligence of the unidentified driver.
This particular amounts to an assertion that the judge should have found in favour of the appellant on the question of whether she had proved her case at trial. For the reasons already given, it was open to the trial judge to find that he was not so satisfied.
Particular 1.8
Particular 1.8 is in these terms:
1.8The Learned Trial Judge erred in drawing an adverse inference, thus undermining the Appellant's credibility based on the Appellant's failure to call her mother as a witness to corroborate an earlier account by the Appellant of her version of the accident. Such evidence was hearsay and inadmissible in the absence of a suggestion of recent fabrication by the Defendant.
At [107] ‑ [113] of the reasons his Honour accepted a submission on the part of the respondent that the unexplained failure by the appellant to call her mother, to give evidence of the explanation which she gave to her mother about the circumstances of the accident, should give rise to an adverse inference that her mother's evidence would not have assisted her case (applying Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). In my respectful opinion, for the reasons that follow, his Honour erred in so finding.
On the appellant's evidence, she explained the circumstances of the accident to her mother the day after it occurred. His Honour expressed some doubt as to the credibility of that evidence. As I understand it, no complaint is made in that regard. In any event, no complaint could be made. It was open to his Honour to find that it was improbable that, if the appellant had been hit by a car with its headlights off, the appellant would have failed to tell her mother about that on the day of the incident.
His Honour then went on to say [110] that even if the appellant's evidence was accepted that she did not tell her mother of the details until the following day, that this was 'sufficiently contemporaneous and part of the res gestae in the peculiar circumstances of this case'. I accept the appellant's submission that such evidence would not have been admissible under the doctrine of res gestae. What the appellant told her mother the following day did not form any part of the 'res' or 'transaction' constituted by the collision between the car and the appellant. It was not a spontaneous and contemporaneous statement by a participant (as to which see Cross on Evidence (7th ed, 2004) [37050 ‑ 37080] and R v Golightly (1997) 17 WAR 401). It would have amounted to no more than an inadmissible prior consistent statement.
The trial judge also found that the appellant's mother would have been able to give evidence in relation to a number of other matters [111]. These included attempts to contact the driver and the witness, and what happened to the two pieces of paper containing their names and telephone numbers. As I understand it, the appellant did not complain of any error in that regard. In any event, I am not satisfied of any error in these respects.
However, the point remains that the judge drew an inference that the evidence of the appellant's mother would not have assisted the appellant's case, and one of the bases for that was that the appellant's mother could have given evidence of what the appellant told her as to the circumstances of the accident. As I have said, in my respectful opinion, his Honour erred in relation to that basis for drawing the inference that he drew.
The question is whether his Honour's error in this regard affected his conclusions. I am satisfied that it did not. His Honour set out his conclusions in relation to the plaintiff's credibility at [103] ‑ [105]. I have set out those paragraphs earlier in these reasons. He then went on in [107] ‑ [113] to consider the Jones v Dunkel point. At [106] he described the appellant's case as being 'not assisted' by the Jones v Dunkel point.
He summarised his findings of fact at [114] ‑ [121]. At [115] he stated that 'as already mentioned' he was not persuaded on the balance of probabilities that the appellant was injured in the way she contends. I am satisfied on a reading of the trial judge's reasons as a whole that removing reference to the failure to call the appellant's mother, in relation to the explanation of the incident given by the appellant to her mother, would have made no difference to the conclusions to which his Honour came.
For all these reasons, ground 1 fails.
Grounds 2 and 3
These grounds relate to the provisional assessment of damages by the trial judge. In the course of that assessment, his Honour reduced the damages by 50% for contributory negligence. The appellant complains that his Honour gave no reasons for doing so. The complaint is made out. His Honour did not say anything to explain why or the basis for a finding of contributory negligence. It might perhaps be inferred that the finding of contributory negligence was made on the basis invited by the respondent's counsel at trial (ts 221) that she stepped on to the road when it was dark and unsafe to do so. However, to my mind it would be speculation to so conclude. Had ground 1 been established, I would have upheld ground 3. However, because ground 1 fails, the question of any provisional assessment does not arise.
Conclusion
Although I would uphold ground 3, I would dismiss the appeal. There is, consequently, no need to consider the respondent's notice of contention.
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