Sangha v Baxter - [2009] NSWCA 78

No judgment structure available for this case.

Appeal Outcome: Special leave dismissed with costs by the High Court, 3 November 2009 s99/2009

New South Wales

Court of Appeal

CITATION: Sangha v Baxter [2009] NSWCA 78

HEARING DATE(S): 2 March 2009

JUDGMENT DATE:
9 April 2009

JUDGMENT OF: Tobias JA at 1; Basten JA at 131; Handley AJA at 161

DECISION: (a) Grant leave to appeal to the applicant from the decision of Judge McLoughlin of 29 May 2008;
(b) Dismiss the respondent’s summons seeking leave to cross-appeal;
(c) Appeal allowed;
(d) The judgment of Judge McLoughlin of 29 May 2008 be set aside;
(e) The proceedings be remitted to the Common Law Division of the Supreme Court for retrial on all issues and that the retrial be expedited;
(f) The respondent to pay the appellant’s costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors’ Fund Act 1951, if other otherwise qualified;
(g) No order for costs with respect to the respondent’s summons seeking leave to cross-appeal;
(h) The costs of the trials before Judge Garling and Judge McLoughlin be determined by the trial judge at the remitted trial.

CATCHWORDS: APPEAL – appeal – general principles – interference with Judge's findings of fact – functions of appellate court – findings on issue of negligence – where findings based on credibility of witnesses – where findings clearly wrong – particular cases – whether acts causing injury were carried out in self defence – whether contributory negligence established – whether injury occurred following commission of a serious offence by injured party – power to transfer proceedings in the District Court on a claim for damages to the Common Law Division of the Supreme Court – whether the case involves complex legal issues or issues of general public importance

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
District Court Act 1973
Law Reform (Miscellaneous Provisions) Act 1965
Motor Accidents Compensation Act 1999
Suitors’ Fund Act 1951
Supreme Court Act 1970

CASES CITED: Derek Denton Bonnick (1977) 66 Cr App Rep 266
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186
King v Collins [2007] NSWCA 122
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) Aust Torts Reports 81-928
New South Wales v Lepore [2003] HCA 4; 212 CLR 511
Sangha v Baxter [2007] NSWCA 264
State of New South Wales v Riley [2003] NSWCA 208; 47 NSWLR 496
The Queen v Howe [1958] HCA 38; 100 CLR 448

PARTIES: Balraj Sangha
Peter Marshall Baxter BHNF Laurna Baxter

FILE NUMBER(S): CA 40265/08

COUNSEL: A: M B Williams SC / R O'Keefe
R: D Wheelahan QC / K Andrews

SOLICITORS: A: Vardanega Roberts, Sydney
R: Keddies, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2751/06

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 29 May 2008

CA 40265/08

TOBIAS JA
BASTEN JA
HANDLEY AJA
Thursday 9 April 2009

BALRAJ SANGHA v PETER MARSHALL BAXTER BHNF LAURNA BAXTER

Judgment

1 TOBIAS JA: In this matter the respondent claimed damages for injuries sustained by him on 5 July 2005 when, after alighting from Taxi T1952 in Malouf Place, Blacktown, its driver, Kamaljit Singh Nagra (Mr Nagra), reversed the vehicle whereupon the open passenger door struck the respondent causing him to fall to the roadway and strike his head, thus causing brain damage. It was accepted that Mr Nagra was the agent of the appellant, the owner of the taxi, and that accordingly the appellant would be liable to the respondent for Mr Nagra’s negligence.

2 The parties agreed that the issue of liability, including contributory negligence, should be determined before the issue of damages. Those issues were tried before his Honour Judge McLoughlin of the District Court who on 29 May 2008, held that the appellant was liable in negligence to the respondent but that the latter’s damages should be reduced by 25% due to his contributory negligence. It is from that decision that the appellant appeals to this Court. However, it was ultimately appreciated that as the primary judge’s decision was interlocutory and not final, this Court’s leave to appeal was required: see District Court Act 1973 s 127(2)(a).

3 Accordingly, a summons for leave to appeal has now been filed. The respondent has also filed a summons for leave to cross-appeal with respect to the primary judge’s finding of contributory negligence. In my view leave to appeal should be granted.

4 The trial on liability before the primary judge was the second such trial. The first was before his Honour Judge Garling who also found in favour of the respondent on the issue of liability. His Honour also discounted the respondent’s potential damages by 25% for contributory negligence. However, an appeal by the appellant to this Court was upheld by majority (Ipp JA, Campbell JA agreeing) with the result that the judgment and orders made by Judge Garling were set aside and the proceedings were remitted to the District Court for retrial: Sangha v Baxter [2007] NSWCA 264.

The background facts

5 The respondent, due to his injuries, has no memory of the accident or the events that immediately preceded it. However, it was common ground that he had consumed a considerable amount of alcohol on the morning and afternoon of the accident. At approximately 4pm on 5 July 2005 he hailed Mr Nagra’s taxi.

6 It was also common ground that at least at some point during the journey to Malouf Place, the respondent behaved in an aggressive manner towards Mr Nagra. There were some words exchanged between them as to the direction in which Mr Nagra was driving. Thereafter the respondent grabbed the steering wheel and then grabbed Mr Nagra’s neck, ripping his shirt and jumper. The respondent punched Mr Nagra and said words to the effect “I will kill you”. All this happened just before the taxi stopped in Malouf Place.

7 The critical factual issues that were in dispute related to what happened after the taxi first stopped in Malouf Place. However, as will appear, the evidence of the independent witnesses generally established that the respondent, having been in the front passenger seat of the taxi, alighted from it but then leaned back into the taxi whereupon some form of altercation or, as one witness described it, commotion took place between the respondent and Mr Nagra. Mr Nagra then reversed the taxi approximately two feet, whereupon the respondent lost his balance; he recovered and leaned back into the taxi again and a further altercation or commotion took place. Mr Nagra again reversed the taxi approximately two feet, causing the respondent to again lose his balance. For a third time, having again recovered his balance, the respondent leaned back into the taxi and yet another altercation or commotion occurred. This time Mr Nagra reversed the taxi for some distance causing the respondent to lose his balance and fall to the roadway, sustaining the injuries for which he is now suing.

8 However, what precisely happened on each of those occasions and the inferences to be drawn from the facts established by the evidence of the independent witnesses constituted the contested issues at trial and on the appeal. In particular, of critical significance to the resolution of those issues was the primary judge’s finding with respect to the credit of Mr Nagra and the relationship of that finding to the evidence of the independent witnesses.

The procedure adopted before the primary judge

9 Apart from Mr Nagra, the direct witnesses to the relevant events were Mrs Davina Jones who lived at 14 Malouf Place, Blacktown and the two daughters of her friend, Amanda Travis, Haley Travis (Haley) and Jamie-Lee Travis (Jamie-Lee), who were visiting Mrs Jones at the time. All of them knew the respondent, referring to him in their evidence as “Marshall”. When she gave evidence before Judge Garling, Haley was 14 years old and her sister, Jamie-Lee, was 11 years old. On the second trial before the primary judge only Jamie-Lee and Mrs Jones gave evidence. However, it was agreed that the transcript of the evidence of all three witnesses before Judge Garling would be tendered before his Honour and it was.

10 Mr Nagra also gave evidence both before Judge Garling and the primary judge and his evidence before Judge Garling was tendered on the second trial. One of the problems with Judge Garling’s judgment, which caused the first trial to miscarry, was that his Honour did not give due consideration to the evidence of the Travis sisters or make findings as to whether their evidence was reliable or not.

11 The importance of the evidence of those three witnesses was due to the defences that had been raised by the appellant. The respondent had sued on two causes of action. The first was that Mr Nagra was negligent. The second was that Mr Nagra drove his vehicle with the intention to have it come into contact with the respondent and to cause him injury. The appellant in his defence relied upon ss 52(1)(a), 52(2), 53 and 54(1)(a) of the Civil Liability Act 2002 (the CL Act). It is sufficient to appreciate the primary judge’s approach to the issues in the case to refer only to the relevant provisions of s 52:

“52. No civil liability for acts in self-defence

(a) was unlawful, or

(a) to defend himself …

(b) …

(c) …

12 The primary defence relied upon was that of self-defence pursuant to s 52(2). It was in that context that the evidence of the independent eyewitnesses became critical, particularly with respect to the extent to which, if at all, they corroborated the evidence of Mr Nagra, whose credibility was seriously in issue.

13 In this last respect the manner in which the case was conducted before the primary judge calls for comment. This Court made it clear on the first appeal that as factual issues needed to be resolved which involved matters of credibility, this Court could not make any necessary findings and the matter therefore needed to be remitted to the District Court for retrial.

14 As I have indicated, both parties agreed that the transcript of the evidence before Judge Garling should be tendered before the primary judge as was the Blue Book before this Court containing the exhibits admitted before Judge Garling. It would appear that the primary judge read the transcript of each of the witnesses before Judge Garling prior to those witnesses being called before him.

15 As I have indicated, Haley was not called before the primary judge. However, Jamie-Lee and Mrs Jones were and their evidence was obviously supplemental to but generally consistent with the evidence each had given before Judge Garling. In fact, it is fair to say that senior counsel for the appellant truncated the evidence in chief of Jamie-Lee upon the basis that her previous evidence before Judge Garling had become part of the record before the primary judge. It is also fair to say that during the course of the evidence of those two witnesses, the primary judge did not seek to in any way truncate their evidence. In neither trial was their credit challenged.

16 The attitude of his Honour seemed to change with respect to the evidence of Mr Nagra. It was clear that as his credibility was clearly in issue, senior counsel for the appellant intended him to give all of his evidence in chief orally notwithstanding that he had already given that evidence before Judge Garling, the transcript of which was already before the Court.

17 A few questions after commencing his evidence in chief, his Honour queried the relevance of the questions that were being asked. It was pointed out to his Honour on behalf of the appellant that the issue of Mr Nagra’s credibility was critical to the case. Reference was made to what Ipp JA had said in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at 190 [21] and 191 [27] on the question of the demeanour of a witness from a different cultural and ethnic background to that which a judge is familiar with. In this respect Mr Nagra was born and raised in the Punjab area of India and English was not his first language.

18 At Black 44X Mr Nagra was asked the following question:

“Q. About what time did you first encounter the [respondent] Mr Baxter?”

“WILLIAMS: Your Honour this case is back in this court for re-hearing de novo because, I think it’s fair to say, it’s common ground that the Court of Appeal believed that issues of credit that hadn’t been dealt with needed to be dealt with. I have economised with witnesses wherever possible, I think your Honour would be kind enough to concede. With this critical witness it seems to me that his evidence should be given de novo and I’ve so advised my learned friend at the bar table this morning.

HIS HONOUR: I’m sorry, I thought the previous evidence was being relied upon.

WILLIAMS: Your Honour it’s by agreement that it is to form part of the evidence in this hearing.

HIS HONOUR: Yes, but all I’m concerned with, if it’s there, there’s no need for it to be there again.

WILLIAMS: Your Honour I wish to present this critical witness in his evidence in its entirety before you, the judge de novo.

HIS HONOUR: Do you seek to have excised from the previous tender the evidence he gave before Judge Garling?

WILLIAMS: No.

HIS HONOUR: Why is there a need to repeat --

WILLIAMS: Because we wish to have the benefit of a full evaluation of this man as to his credibility particularly when the Court of Appeal has sent this matter back because it involved questions of credibility. And it’s this witness who is essentially under attack by the [respondent’s] camp. I’m not going to, unless ordered to – I’m not about to shortcut his evidence and not give him the benefit of --

HIS HONOUR: Mr Williams, all I’m concerned about is repetition of matters which are in evidence.

WILLIAMS: It’s not repetition of what’s gone before because you haven’t seen his demeanour in the transcript.

HIS HONOUR: But I’ll see his demeanour in the evidence that you ask him, you don’t have to go through everything which has been given before. I don’t propose to make any orders in relation to it Mr Williams, but I don’t want you to take an undue amount of time in going over matters of which there is evidence and of which has been dealt with.

WILLIAMS: That’s not going to happen, but I am going to ensure, as far as the court permits me, that a full examination of his credibility and demeanour is made available, or can be enjoyed by the court.

HIS HONOUR: Just have regard, Mr Williams, as you take the witness through his evidence, that we don’t want to waste time on evidence being led of which it has previously been led which is before the court.

WILLIAMS: Yes, I’ll bear that in mind.”

19 It is apparent from the above exchange, and there were some other similar instances during the course of Mr Nagra’s evidence, that his Honour was concerned to ensure as far as possible that the evidence Mr Nagra had given before Judge Garling was not repeated before himself. He was apparently of this view notwithstanding that Mr Nagra’s credibility was a significant issue and questions of his demeanour in the witness box were obviously relevant to that issue.

20 It is not unimportant to observe that his Honour did not seek to place any similar restriction on the cross-examination of Mr Nagra. Of itself that was appropriate given the issue of Mr Nagra’s credibility. But there should also have been no limitation upon his examination in chief. The latter may have been just as relevant to his demeanour as the former. The fact is that his Honour was able to observe Mr Nagra for a much lengthier period of time in cross-examination than in chief. It was obvious that that did not help Mr Nagra’s credit given his Honour’s ultimate findings with respect thereto.

The primary judge’s references to and findings with respect to the evidence of the independent witnesses

21 The primary judge had no hesitation in accepting the evidence given by Mrs Jones, which he found to be most reliable and acceptable. It will be necessary therefore to refer to her evidence in more detail below. His Honour did not make the same finding with respect to the evidence of the Travis sisters. He first touched upon their evidence in the following terms (at Red 21W–22I):

“Jamie-Lee Travers [sic “Travis”] said that when she went into Mrs Jones’ house she said, ‘There’s a taxi outside with two people. The taxi driver and the passenger are fighting and punching and all I could hear was yelling’. She then described going back outside and seeing the [respondent] half in the car still trying to have a fight with the taxi driver. She said that she then saw the taxi reverse very slowly with the [respondent] just moving with the taxi. The kept on fighting and then he went back really fast and Marshall, the [respondent], went under the door. She was also on the other side of the roadway.

Amy [sic, Haley] Travers [sic], her sister, observed the [respondent] just disappear under the car from the passenger side with the taxi going backwards with the passenger door open.”

22 After dealing in some detail with the evidence of Mr Nagra (to which I shall return) his Honour said (at Red 24E–H) that he accepted the evidence

“of Mrs Travers [sic] that there was an altercation continuing between the [respondent] and Mr Nagra in the taxi in Malouf Street when she came out. She had described the waving of arms but had a fairly restricted view as to that which was occurring.”

23 It is difficult to know to which Travis girl his Honour was referring. As I will demonstrate, neither of the Travis sisters expressly “described the waving of arms” although before Judge Garling, Haley had given the following evidence (at Blue 51H–T):

“Q. What was the first you knew about anything that was happening outside involving a taxi?

A. Well, my sister and I went outside to look for our friend.

Q. Who was that?

A. Jessica Jones.

Q. Right?

A. Yes and we saw a taxi but I didn’t really pay attention and then I heard some, like some yelling and some and so on and Jamie-Lee sort of knew what was going but I didn’t because I wasn’t paying attention and then she suggested that we go inside and then I looked back and I could just see like some motion like in the taxi and then we went inside to inform the parents.

Q. What sort of motion could you see going on inside the taxi?

A. I don’t know, just sort of, just punching and stuff like that.

Q. How much punching?

A. It was hard to tell through the windscreen.

Q. Yes?

A. And it was a far distance.

Q. So, you and Jamie-Lee --

A. Yep.

Q. -- went back inside, is that right?

the waving of arms

hands going around in a circular fashion

24 His Honour referred in his judgment to the evidence of the Travis sisters on two other occasions. First, (at page 5) he accepted the evidence of Mrs Jones and Jamie-Lee that the taxi reversed on three occasions contrary to the earlier insistence of Mr Nagra that the vehicle went forward. Second, (at page 8) he accepted that there was some altercation in the vehicle between Mr Nagra and the respondent after the vehicle stopped. However, he did not accept that it was entirely the respondent’s doing. Rather, he accepted (at Red 27U–X) that Mr Nagra was also attempting to either push or in some way move his hands towards the respondent: “That is the inference I draw from the evidence of the Travers [sic] girls.”

25 His Honour’s ultimate finding (at Red 29M–Q) with respect to the evidence of Mrs Jones and the Travis sisters was as follows:

“I accept that there were the attempts by the [respondent] to get back into the vehicle, arms may have been waved around, but when one looks at the injuries suffered by Mr Nagra, his own version as to when the punching and assault stops, the evidence of Mrs Jones and the Travers [sic] girls, I am of the view there was no physical contact of any moment after [respondent] left the vehicle and definitely no punching or assaults.”

26 In my opinion this finding, which his Honour repeated more than once, was contrary to the evidence of not only Mrs Jones but also of the Travis sisters: see [98] below. To that evidence I now turn.

The evidence of Mrs Jones

27 In her evidence before Judge Garling (at Blue 59–60), Mrs Jones said that when she came outside in response to one of the Travis sisters coming inside and telling her mother, “Mummy, there’s a man outside hitting the taxi driver” (see at Black 25Q–R), she observed a person (the respondent) leaning into the taxi through the front passenger door. She could see that there was a “commotion going on … inside the cab”. After this she saw the cab suddenly reverse about two feet. The respondent lost his balance and grabbed the passenger door with his left hand. He regained his balance and stood upright but then leaned back into the taxi. A further commotion then occurred, although she could not actually see what was going on.

28 After the second re-entry into the taxi by the respondent, Mr Nagra again reversed suddenly for another two feet. The following exchange then occurred (at Blue 61E–P):

“Q. What happened to the apparent passenger after the second reverse jerking manoeuvre?

A. Regain their – lost their balance. It’s just a repeat action the left arm on the door, passenger’s door. The right was up on top of the roof of the taxi, regained the balance and was upright again.

Q. What did he do then?

A. Went back into the taxi.

Q. So, this is the third time?

A. Yes.

Q. And what did you see inside the taxi?

A. I didn’t see anything then the taxi went --

Q. Did it move?

A. --backwards very quickly.

Q. Yes, all right, did you note at that time whether the passenger door was open or closed?

A. Still open.

Q. And what did you see happen with respect to the passenger who had made this third attempt to re-enter the taxi?

A. Went under the open passenger door.

Q. Yes, all right. Did you see him go under any wheel?

29 In her evidence in chief before the primary judge, Mrs Jones related (at Black 26–27) the events very much as she had before Judge Garling. When asked how far the respondent’s body had leaned into the taxicab, she responded that she could not see his top half. When asked how long the events took to occur, she considered that they took place over approximately 30 seconds.

30 Mrs Jones was cross-examined before Judge Garling as follows (at Blue 62N–63T):

“Q. Mrs Jones, when the taxi was first seen by you it was stationary, is that right?

A. That’s correct.

Q. With the door open, as shown in the photograph that has been tendered?

A. That’s correct.

Q. And the man who was ultimately knocked down by the taxi was standing between the open door and the body of the cab?

A. Yes.

Q. He was standing on the roadway?

A. Yes.

Q. With him in that position involved in a commotion, the taxi reversed with him in that same position between the door and the cab?

A. Yes.

Q. He was knocked off balance to your observation by that manoeuvre?

A. Yes.

Q. The taxi stopped and he regained his balance and leant into the cab again, a commotion ensued, correct?

A. Yes.

Q. Another reversing movement by the cab?

A. Yes.

Q. Not dissimilar to the first?

A. Similar to the first, yes.

Q. Again he’s knocked off his balance by being struck by the cab or the movement of it?

A. Yes.

Q. After the cab stops, he regains his balance, correct?

A. Yes.

Q. The commotion resumes, he’s leaning into the cab?

A. Yes.

Q. Standing on the roadway?

A. Yes.

Q. Still in the same position between the door and the body of the cab?

A. Yes.

Q. And on that occasion the taxi reversed faster than on either of the two previous occasions, correct?

A. Reversed further than it had on either of the previous two occasions?

A. Yes.

Q. And while still in the process of reversing, [knocked] the passenger or the man between the door and the cab to the ground?

A. Yes.

Q. And continued to reverse?

A. Yes.

Q. After the passenger or the person, we’ll call him the passenger anyway, after the passenger was struck by the open door, did you see his arm go up in the air and his body go under the open door?

A. Yes.

Q. The taxi continued its reversing manoeuvre?

31 In cross-examination before the primary judge and after establishing that on the first two occasions when the taxi reversed the respondent had lost his balance and regained it by placing his left hand on the open door and his right hand on the roof and was facing towards the taxi, Mrs Jones was asked whether his hands remained in that position when he leaned into the taxi, to which she responded (at Black 33P–Q):

“No, his hands weren’t on – once he regained his feet and was standing his arms were taken down and then leant over into the car”.

32 Having described what occurred within the taxi when the respondent leaned back into it as a “commotion”, the following exchange occurred (at Black 35H–V):

“HIS HONOUR: Q. Mrs Jones when you gave evidence in the court on the last occasion you used the word ‘commotion’?

A. Yes.

Q. What did you mean by that?

A. To me it was – I could see things like this. I couldn’t see --

Q. You’re indicating hands going around in a circular fashion?

A. Well yeah.

Q. Hands and arms going --

A. I really couldn’t see, I just could see – what do you call – arms – I could just see, it’s hard to explain. I just called it commotion, something going on. I don’t know what to say. I don’t know how to explain it.

HIS HONOUR: Mr Wheelahan any questions arising?

WHEELAHAN: Q. And you don’t know who the movement was initiated by do you?

A. No.

Q. You don’t know whether it was coming from the driver to the passenger side or the passenger side towards the driver?

A. No.

Q. And you don’t know whether there was any contact made between either or both of the people involved?

A. No.

Q. Simply because you couldn’t see clearly?

A. Yes.”

33 There was one piece of evidence that Mrs Jones gave before the primary judge that she had not given before Judge Garling. After the respondent was injured, she said that Mr Nagra came over to the respondent and immediately made a call on his mobile phone in a language that was not English. Over objection she was asked the following (at Black 29S–30D):

“Q. How did he appear to be when he was on the phone talking in a foreign language?

A. He was speaking very loudly, distressed, anxious.

Q. Whilst you were at the taxi did he indicate anything to you concerning the interior of the taxi?

A. Yes.

Q. Did he say something whilst he was so indicating?

A. Yes.

Q. What did he say?

A. ‘Look what he’s done, look what he’s done’.

Q. Did he indicate to that which he was referring?

A. Yes, he put his arm up towards the rear vision mirror, beside the rear vision mirror there was something hanging down. I didn’t know at the time, I don’t know what it was.”

34 The reference to the rear vision mirror and what was “hanging down” was to the rear vision mirror being in a vertical rather than horizontal position and to the taxi security camera having been dislodged and hanging by its cord, as appears in the top photograph of the interior of the taxi at Blue 200. There was also evidence that Mr Nagra made a call at the scene to the police and ambulance services.

The evidence of Haley

35 As I have indicated Haley only gave evidence before Judge Garling. She was not recalled before the primary judge. Her relevant evidence in chief has been set out at [23] above.

In a short cross-examination Haley acknowledged (at Blue 55D–E) that the respondent “ disappeared under the taxi ” when it was going backwards with the passenger door open. Importantly, she had given evidence which was not challenged, that she had observed punching going on inside the taxi.

The evidence of Jamie-Lee

36 Jamie-Lee gave the following evidence in chief before Judge Garling (at Blue 45J–V):

“Q. --just tell us what you were hearing and what you saw happen?

A. Well I saw – we went outside Haley and I, Haley was just looking around and I saw this – I saw the taxi and I just saw yelling noises and punching or whatever, so I just said ‘Haley quick go inside’.

Q. Stop, stop there please. Where was the punching taking place?

A. It was just next to the car park sort of thing near their house.

Q. And who was punching who?

A. I don’t really – I didn’t really see that much.

Q. Whereabouts was the punching taking place?

A. I don’t know just like in the car, in the taxi.

Q. And could you see any people in the taxi?

A. Yes.

Q. How many people appeared to be in it?

A. There were two.

Q. And whereabouts in the car were they?

A. They were in the driver’s seat and the one next to it, both the front seats.

Q. And so what did you do after you saw this punching taking place?

37 She then gave evidence that her mother rang the police, whereupon she proceeded to go outside. She then gave the following further evidence in chief (at Blue 47F–R):

“Q. Well did you go outside again after that or not?

A. Yes.

Q. And what did you see when you went back outside?

A. I saw Marshall and he was outside of the taxi this time and trying to get back in and they were like still punching and that going on. And then – and then I didn’t see him actually go under the door but I – but once I went back inside and then I came out he was down on the floor.

Q. Now you say Marshall was trying to get back in --

A. Yeah.

Q. -- to the cab --

A. Yes.

Q. And you saw punching still?

A. Yes.

Q. Who was doing the punching?

A. I don’t know, I didn’t really see that good.

Q. Well you’ve told us that you didn’t see Marshall actually go under the door?

A. No.

Q. But you saw him on the ground --

A. Yes.

Q. -- after this punching had taken place?

38 Her cross-examination (at Blue 48–49) was confined to establishing that when the taxi reversed three times the respondent was standing between the passenger door and the body of the taxi. She was not challenged on her evidence in chief to the effect that she saw the respondent trying to get back into the taxi and saw punching, although she could not see who was doing the punching.

39 Jamie-Lee was called before the primary judge but her evidence in chief was confined to acknowledging her evidence before Judge Garling. She was cross-examined, it being suggested to her that she did not really see that much, to which she responded (at Black 37W–38C):

“A. All I remember seeing the Marshall half in – like half in the car, like his top half body in the car still trying to have a fight with the taxi driver and then I saw the taxi reverse a little bit, like very slow and Marshall just moving with the taxi a bit and they kept on fighting and then he went back really fast and Marshall went under the door.”

She acknowledged (at Black 38D) that she could not see who was punching whom.

The evidence of Mr Nagra

40 Mr Nagra gave evidence both before Judge Garling and the primary judge. He gave a substantial part of his evidence through an interpreter, it being obvious, as I have said, that English was not his first language. In his evidence in chief before Judge Garling (at Blue 72–73), he said that prior to entering Malouf Place and whilst in Tulloch Street, the respondent grabbed the steering wheel as well as Mr Nagra’s jacket. When Mr Nagra said not to touch him and not to touch his taxi, the respondent grabbed him around the neck and pushed him back saying “I can kill you now”. At the time he said this he was using his full force to push Mr Nagra, his knee being on the LPG tank. Mr Nagra was asked what happened after his throat was grabbed. He responded as follows (at Blue 73W–74E):

“I told him ‘You can not touch me. Please get out of my car, my taxi and do not try to cause any more trouble’. And he tried to punch me and I told him, ‘If you’re not going to stop, then I’m going to call the police’. Then he replied, ‘I don’t care. Do what you want’. I told him to get out of the cab. He went to his seat and then came back and started punching me. I tried to hold that situation. I thought if I can get out of here, I will. I asked him again to please stop causing trouble. He came back and tried to hit me.”

41 Mr Nagra was then asked to be more responsive and not to describe his feelings but what actually happened, to which he responded as follows (at Blue 74M–R):

“He tried to assault me and my attempt was to get out of that situation to avoid a confrontation and further trouble. He tried again. He punch me. I asked him, ‘Please stop hassling me. Just leave me and go’. He continued punching me and I beeped the horn and I sought assistance and help from someone. I was very scared and I was frightened. I was crying at the time and I thought I’m going to get killed. He was trying his best. He continued punching me and I was trying to protect and defend myself by stopping him and blocking him, asking him not to punch me. I told him ‘Please stop. I can’t handle it anymore’.”

42 After giving that answer, the following exchange took place (at Blue 74S–75C):

“Q. Yes, so what happened?

A. He got out of the car and I moved my car and left my car a bit. Honestly speaking, at that time I was very scared and frightened. I thought he might pick up rock, stone, brick or something and he can attack on me again.

Q. So what did you do?

A. Then I parked my car in a safe location and I saw he was lying on the ground.

HIS HONOUR. Q: Sorry, I parked my car --

A. At a safe place.

Q. At a safe location?

43 It is at this point that Mr Nagra’s evidence potentially conflicted with that of the three independent witnesses insofar as he was suggesting that he moved his car forward to get away from the respondent whereas the evidence of those witnesses was that he reversed it three times.

44 After Mr Nagra parked the taxi and had seen the respondent lying on the ground, he rang his base, told them he had been attacked and requested assistance from the police and an ambulance. He remained at the scene.

45 Mr Nagra then gave evidence as to the damage to his clothing caused by the respondent and, when asked what injuries he had sustained as a consequence of the altercation, said that he had scratches on his chest, bruising over his left eyebrow around the temple area and bruising and scratching to his hand. He also said, and this was not challenged, that his safety screen was damaged, as was the vehicle’s security camera.

46 Mr Nagra was then cross-examined before Judge Garling at some length. The first relevant exchange was as follows (at Blue 88S–89Q):

“Q. What I suggest to you is that you told Constable Beacroft [who attended the scene and later interviewed Mr Nagra at the police station] that when you entered Malouf Place the passenger said to you, ‘It’s never more than $7’, then you stopped the taxi near the kerb and he started punching you?

A. Yes I stopped the taxi and he start punching me.

Q. Then you said, ‘Then he got out of the taxi and I beeped my horn for people to help me’? Is that correct?

A. Yes.

Q. Then you said, ‘Then I go forward to turn around and he got under my taxi’, is that what you say – I’m sorry, is that what you told Constable Beacroft?

A. No.

Q. You didn’t tell her that?

A. That did not happen so I have not told that to the police officer.

Q. What part of that did not happen?

A. Yeah that part is right that I beeped the horn when I was seeking help.

Q. Yes?

A. And I told him to please stop causing trouble otherwise I am going to ring the police.

Q. But did you then go forward to turn around, and was it then that he got under your taxi?

A. I could not move my car because there was a man in front of me so there was no room to move.

Q. So may I take it then that you did not go forward to turn around and then he was under your taxi by some means or other?

A. No he was not under the taxi.

Q. Mr Nagra you told Constable Beacroft later that night when you were interviewed by her, that after the passenger got out of the taxi that there was no further interaction between the two of you, that’s correct isn’t it?

A. No he came back and start punching me.

Q. When he got out of the taxi you told her that he didn’t punch you again, did you not?

A. First he did.

Q. I beg your pardon?

A. First he did.

47 He gave an unresponsive answer to the last question in the above exchange, but when asked to repeat it gave the following answer (at Blue 90C–E):

“Yes, he tried to punch me but I told him, ‘Please don’t cause any more trouble’, and I asked him to leave the cab. He came back and started punching me again and he punched me again. I was hoping that he would get out of my cab and I will move away from there, from that location.”

48 It was then put to him that on the night that Constable Beacroft had interviewed him about the incident, he had told her that after the respondent alighted from the cab, he did not punch or assault him again, a proposition with which he disagreed. The following exchange then took place (at Blue 90N–U):

“Q. But that was the fact wasn’t it, that any assault that you say happened, happened before he got out of the cab?

A. I asked him to leave the cab and go and stop harassing me, he tried to get out but then he come back and start punching me.

Q. Yes, but when he finally did get out of the cab, that was the end of any punching that you say happened wasn’t it?

49 In his cross-examination before the primary judge, the last question and answer referred to in the previous paragraph was put to him and the following exchange occurred (at Black 65P–66C):

“Q. Mr Nagra, is that what you said in the previous hearing?

A. If you’re asking me for the last time he went out, I didn’t see him where he was. I couldn’t see him.

Q. Mr Nagra, do you recall [the respondent] standing between the door of your cab and the body of your cab?

A. And the last time he was not standing there.

Q. Let’s go to the first time that you now tell us about. That’s where he was standing, wasn’t it?

A. Yes. He was about to go out of the car and then he again came back and tried to hit me.

Q. And when he leant into your taxi, you reversed back rapidly, didn’t you?

A. If he was inside the taxi, how could I – I wanted to get away from that place.

Q. Mr Nagra, I asked you, on the first occasion that you say that the [respondent] leant back into the taxi that he was standing between the open door and the cabin of your taxi. Do you agree with that or not?

50 Returning to his cross-examination before Judge Garling, Mr Nagra insisted (at Blue 91) that the respondent was trying hard to punch him but that his punches did not land. He denied that after the respondent first alighted from the taxi there were no more punches thrown. I observe that that denial was essentially consistent with and corroborated by the evidence of Mrs Jones and Jamie-Lee.

51 Mr Nagra was then cross-examined (at Blue 91T–92I) to establish that if he had reversed his taxi whilst the respondent was standing at the open passenger door, it was possible that he could have been thrown off balance and might fall and possibly suffer serious injury – propositions with which he ultimately agreed. In this context the following exchange occurred (at Blue 92J–V):

“Q. And Mr Nagra if you did it for a third time, that is reverse back with a man standing between the open passenger door and the body of the cab with significant acceleration and without stopping, you would know, in July 2005 would you not, that it’s almost inevitable that that man would be knocked down?

A. Yes, if the person is standing there it is possible.

Q. And that there would exist in those circumstances, a risk of serious injury or even death?

A. Yes if the person is there.

Q. And that’s exactly what you did on this day isn’t it?

A. No, I look at that same time when I reverse the car nobody was there. I looked over my shoulder as well.

Q. You say Mr Nagra that you reversed along Malouf Place?

A. Yeah.

Q. When the passenger was nowhere near your motorcar as far as you were aware, correct?

A. No, yes, if a person was there I would have been able to see him, but I didn’t see him.

Q. And if the person was there, you say that you would never have attempted to knock him out of the way with your motor car don’t you?

A. We’re not driving cabs to kill people.

Q. Because you know that if you attempted to dislodge a person standing between the open door of a cab and the body of a cab by reversing into him, would almost inevitably expose him to the risk of serious injury don’t you?

52 As will appear, the primary judge rejected Mr Nagra’s evidence insofar as his evidence was that he did not see the respondent when he reversed the taxi for the third time. His Honour also placed particular reliance on this last exchange as evidencing Mr Nagra’s knowledge that if he reversed his taxi in the manner in which he did on the third occasion, he must have intended to seriously injure the respondent.

53 The cross-examiner then sought to suggest to Mr Nagra that he was attempting to shake off the respondent by repeatedly reversing the taxi. The following exchange encapsulates that suggestion (at Blue 92X–94C):

“Q …Did you repeatedly attempt to shake the [respondent], that is the passenger, away from his grip on the area of the taxi passenger door by reversing your taxi?

A. All I did was said that I told him that I’m going to call the police, I will complain about you, please move away.

Q. ‘Please move away’, that was the extent of the action that you took to remove him from the vicinity of your cab, is that what you say?

A. Yes told him to leave me alone.

Q. What about the proposition that you repeatedly attempted to shake him away from his grip on or the area of the passenger door by reversing the taxi?

A. I repeatedly told him to get out of the cab and leave me alone.

Q. But you say that you never attempted to remove him from his grip on your taxi by reversing it don’t you?

A. I told him to go away.

…

A Yes I told him to move away from me, leave me alone, don’t harass me any more.

…

Q. You deny don’t you that you repeatedly attempted to shake the [respondent’s] grip off your taxi by reversing the taxi don’t you?

54 This line of cross-examination then continued with the following exchange (at Blue 95P–V):

“Q. I suggest to you that after the passenger had alighted from your taxi and stood on the roadway between the open door on the passenger side and the chassis of the taxi, that you reversed back deliberately to remove him from that area?

A. Why would I do that?

Q. And that you deliberately struck him with the taxi?

A. If that was the case I would have known it.

Q. Do you deny that that’s what you did?

55 It was then put to Mr Nagra (at Blue 96G–O) that he reversed his taxi three times when the respondent was standing at the open front passenger door, knowing that that would expose the respondent to the risk of serious injury – a proposition which he denied but which the primary judge accepted. This line of cross-examination concluded with the following exchange (at Blue 97G–L):

“Q. You told his Honour that you were trying to shield yourself from blows from him whilst he was in the taxi cab didn’t you?

A. Yes, I tried to defend myself.

Q. So was that when you were in Malouf Place.

A. Yes I was.

Q. And he was trying to get at you and you were trying to defend yourself, is that what you say?

56 I interpolate here that the photographs in evidence indicated that the respondent, when he first alighted from the taxi, had left a newspaper and a packet of cigarettes on the floor of the taxi on the front passenger side and there were a couple of loose cigarettes and a lighter on the seat itself. Mr Nagra acknowledged (at Blue 97M) that there was a newspaper but could not remember any other articles. When asked whether the respondent made any attempt to retrieve his articles from the taxi after he had exited therefrom, he responded (at Blue 97P–Q):

“I’m sorry I did not see him after he got out of the cab, I didn’t know where he went and I was thinking perhaps he’s gone to grab something to assault me.”

57 When cross-examined before the primary judge on the same topic, the following exchange occurred (at Black 74R–U):

“Q. Mr Nagra at any time after you arrived at Malouf Place, did you see Mr Baxter trying to reach for his cigarettes?

A. No.

Q. At any time did you see him trying to get his paper or his cigarette lighter back?

A. No, he tried to hit me.”

58 In re-examination before Judge Garling (at Blue 98V–99V), Mr Nagra denied he had ever intended to hurt the respondent or to hit him with his taxi. When asked how he felt when he was being assaulted, he said that he was very scared; that it was the first time this had occurred and he was certain he was going to be killed. He said all he wanted to do was to move to a safe place where he could seek some assistance.

59 Mr Nagra’s evidence in chief before the primary judge was generally consistent with that which he had given before Judge Garling: eg, at Black 47–49. He gave evidence of the respondent having exited the taxi and then re-entering it: ”there he was on the seat, he was near the screen and tried to hit me” (at Black 50J–K). On the second time the respondent re-entered the taxi he again tried to hit him, Mr Nagra telling him “don’t trouble me” (at Black 50K–M). His evidence was that the respondent then got out of the taxi whereupon Mr Nagra reversed it, not seeing him at the passenger door, evidence that his Honour disbelieved. He further disbelieved Mr Nagra’s evidence that the respondent might have gone to find a stone or brick in order to come back and hit him again. He stated that he could not go forward as there was a van parked in front of him and there were children playing between him and the end of the cul de sac. It was only after he had reversed, straightened the vehicle’s position and parked it that he saw the respondent lying beside the kerb whereupon he immediately went to his assistance.

60 The police and ambulance arrived and at around 6pm Mr Nagra was taken into custody at the police station where he remained until he was released at 1am the following morning.

61 Mr Nagra was asked (at Black 54W–X) whether at any stage he intended to hit the respondent with his cab, to which he replied in the negative. He was then asked the following question (at Black 55B–C):

“After the police arrested you, what did you think would happen if you admitted to them that you had reversed your car?”

“WHEELAHAN: Your Honour, what my learned friend is putting to the witness presumably is that when he was interviewed by the police and when he was conducted through the walkthrough and when he gave evidence in the previous trial, during which three occasions he was given an opportunity to explain what had happened and steadfastly denied reversing in the way described by Ms Jones and the Traverse [sic] girls, that he is now going to offer an explanation as to why he lied on those occasions, but he has not yet said that he ever struck Mr Baxter with his motor car. So my learned friend is trying to get the benefit presumably of some explanation from the witness in respect of matters that he hasn’t adopted.

62 The primary judge agreed with this explanation and senior counsel for the appellant indicated that he would not pursue the debate, as it seemed to him a matter for submissions as to the inferences to be drawn. I shall return to the statements made by Mr Nagra to the police below.

63 The cross-examination of Mr Nagra before the primary judge took a fairly similar line to that which it had taken before Judge Garling, namely, that Mr Nagra had deliberately set out, by reversing his taxi, to injure the respondent. Thus the following exchange occurred (at Black 66N–X):

“Q. After Mr Baxter got out of your taxi cab for the first time that afternoon, you reversed your taxi and collided with him, didn’t you?

A. I don’t know that it hit him or not. I wanted to get away from that place.

Q. Mr Nagra, you know it’s suggested, don’t you, that you reversed into him three times that afternoon. You know that, don’t you?

A. Yes. Then for the first time, he went out, I tried to get out of that place, he came back again.

Q. And you deliberately reversed into him with your taxicab?

A. Why should I do that? I every day drive taxi.

Q. I’m suggesting to you that you reversed into him after he got out of the taxi for the first time and then stopped.

OBJECTION

Q. After he alighted from the car, he stood between the open passenger door and the cabin of your taxi, and then you deliberately reversed your taxicab so as to cause him to lose his balance.

64 I interpolate that the questions put to Mr Nagra in this exchange (and which appear to have been relied upon by the primary judge in disbelieving Mr Nagra’s answers to them) did not accord with the evidence of Mrs Jones and Jamie-Lee. Mr Nagra did not reverse into the respondent insofar as the question suggests that he deliberately reversed his taxi when the respondent was standing behind it so as to run over him. On the contrary, the respondent was standing outside the passenger side of the taxi albeit that on it being reversed he was thrown off balance by the open passenger door coming into contact with him.

65 A version which more accurately reflected the evidence of Jamie-Lee and Mrs Jones was then put to him (at Black 68H–69P):

“Q. I’m suggesting to you that after you reversed back, causing Mr Baxter to lose his balance on the first occasion, that he regained his balance, leaned into your taxi and you reversed rapidly for a second time. What do you say about that?

A. If the man was inside the car, how could I reverse?

Q. I’m suggesting that he was in a position where his feet were on the roadway and he was leaning into your taxicab when this occurred.

A. Then how he punched me?

Q. Answer the question Mr Nagra.

A. If his feet were outside and he was inside?

…

Q. I suggest to you that whilst he was standing on the roadway leaning into your taxicab between the open door and the cabin of the taxi, that you reversed rapidly so as to throw him off balance. What do you say to that?

A. No I did not reverse in that fashion, in that way.

Q. I suggest to you Mr Nagra that the [respondent], the passenger, regained his balance after that incident, leaned into your taxicab, whereupon you reversed rapidly.

A. How would I – I didn’t want to run over him.

Q. I’m suggesting to you that on that third occasion you reversed rapidly, knocking him to the ground and you continued on in reverse until you parked in the elbow of Malouf Place.

A. Wouldn’t I see him standing here at that time?

…

Q. I suggest to you that on a third occasion the witness, the passenger regained his balance, leaned into your taxicab and you reversed rapidly, knocking him to the ground and continuing your reversing motion until you parked in the elbow of Malouf Place.

A. Third time if I was reversing in that way, wouldn’t I have seen him?

Q. I’m suggesting to you Mr Nagra that you performed the three manoeuvres that I have described to you with the deliberate intention of knocking the [respondent] away from your taxi.

A. Anyone responsible person who has been driving taxi for last four years, would he knock down a passenger like this?

HIS HONOUR: Q. Do you agree that you drove the taxi in the way Mr Wheelahan has asked?

66 As will appear, the primary judge did not accept Mr Nagra’s evidence that he did not reverse on the third occasion in the manner described by the independent witnesses or that he had not deliberately intended to knock the respondent away from his taxi.

67 It was then suggested to Mr Nagra (at Black 70K–L) that he had told his solicitor that he repeatedly attempted to shake the passenger away from his grip on the taxi passenger door by reversing, to which he responded, “Yes, to ask him to leave my taxi and go away” so that he could escape him.

68 It was then suggested to him (at Black 71 R–U) that he had not given that evidence before Judge Garling, namely, that he had reversed his taxi in order to shake off the respondent. However, this line of questioning was put to him in the exchange which I have recorded in [53] above.

69 It is to be noted that although in a number of respects, his answers to the questions asked of him were not as responsive as they should have been, in his last answer in the exchange recorded at [53] when the same proposition was put to him, namely, that he denied that he repeatedly attempted to shake the respondent’s grip off his taxi by reversing, he had (at Blue 93R–94C) responded “Yes” and then added

“Everybody in this situation will do the same to get rid of the person to move him away from that location”.

70 Finally, in respect of this line in cross-examination, the following was put to him (at Black 72G):

“Q. Did you or did you not reverse your motor car on three separate occasions to remove Mr Baxter from near your cab?

71 It was then put to him (at Black 73F–G) that he had not told Judge Garling that he had reversed on three occasions. He responded that he did not remember as he was very nervous that day and was scared.

72 The cross-examination concluded with the following exchange between the witness and his Honour (at Black 73J–74F):

“HIS HONOUR: Q. When Mr Baxter got out of the taxi the first time, how did he get out?

A. He opened the door and went out.

Q. When he leaned in on the first occasion, how did he get out again?

A. He went rapidly, stepped out but then I told him that I can call the police. He then came back and said ‘I don’t care police’ and ‘I can kill you’.

Q. When he got out on the first time, was that when you were reversing the car?

A. Yes, a little bit reverse it, but when I talked about the police he came back, rushed into the car again.

Q. When he did that, was the car stationary?

A. Yes.

Q. And then did he get out the second time when you reversed on the second occasion?

A. Yes, it was in my mind that he go out and I go away.

Q. But he got out of the car as you were reversing on the second occasion, is that correct?

A. He was outside of the car.

Q. I thought there were two occasions when he got back into the car?

A. Yes, he tried to punch me twice.

Q. And on both of those occasions, did you reverse the car whilst he was leaning in?

A. No, otherwise I couldn’t have got rid of him.

Q. But on those two occasions, did he leave the car when you were reversing?

A. Yes, he stepped out rushingly, he came back rushingly. It was in his mind to hit me some way or other, some how or other.

Q. The third occasion, when he came back on the third occasion when you reversed in a semi circle.

Exhibit 2 before Judge Garling which was re-tendered before the primary judge

73 Exhibit 2 in the first trial was an ERISP transcript of an interview between Constable Beacroft and Mr Nagra commencing at 9.41pm on 5 July 2005. It would be fair to say that generally speaking what he said in that interview was consistent with his evidence before both Judge Garling and the primary judge. Thus he answered questions to the effect that he had been attacked by the respondent and punched whilst the respondent was inside the taxi. He indicated that the rear vision mirror had been broken as well as his E-tag and security camera. He said that when he stopped for the first time there was a van parked approximately 10 feet in front of him. The following parts of the transcript are worth recording:

“Q149 I spoke to one witness who told me that she saw the taxi arrive on Malouf Place ---

A Yeah.

…

Q151 …She told me that she saw the man in your taxi fighting with you.

A (Int) Because when he was trying to punch me, I was trying to protect myself by raising my hands.

Q152 Yes. She says that while this man is trying to hit you, she saw the taxi roll backwards a little bit.

A (int) I was, I also said to him that you get out of the car, don’t give me trouble.

Q153 OK. Do you remember the taxi rolling backwards a little bit?

A (Int) I don’t know. I was scared at that time.

Q154 This lady told me that when the taxi rolled back a little bit ---

A Ah hmmm.

Q154 ---the man was outside the taxi walking with it as it rolled backwards.

A Ah hmm.

A (Int) I don’t know that. I was worried about my life.

Q155 OK. This lady said the taxi then stopped and the man leant back in and started punching you again.

A (Int) I don’t know that. What I did was I was thinking to make a, yeah, I was trying to go to, reach at the right place where I should be safe.
…

Q158 …this lady said she then saw the taxi roll back a second time ---

A …

Q158 ---with the man running next to it. Can you tell me if that happened?

A (Int) I don’t remember that.

Q159 OK

A (Int) But it was for me that I wanted to get quickly out of this state.

Q160 OK Kamaljit, this lady said the man got back in, leant back in the taxi and started grabbing you and punching you again.

A (Int) I don’t remember.

Q161 OK.

A (Int) I could not remember that thing.

Q162 This lady said that she then saw the taxi go very fast backwards. She said when this happened, the man who was punching you was knocked over by his door and underneath the taxi.

A (Int) I don’t think he tried to punch me again when he came out.

Q163 OK. This lady said after the last time he tried to punch you ---

A. …

Q163 --- as he was getting out of the car, the taxi accelerated quickly backwards, causing him to be hit by the door and fall under the car.

74 The lady referred to in the questions asked by Constable Beacroft was never identified. However the interesting thing about the questions that were asked was that this unidentified witness had told Constable Beacroft that the respondent on each of the relevant occasions had leaped back into the taxi and had grabbed and punched Mr Nagra: in other words, the only person doing the punching was the respondent. However, even if the contents of the questions were not admissible as second-hand hearsay, it was the respondent’s answers that were of interest.

75 Mr Nagra did not, at least directly, accept that he was actually being touched or hit by the respondent although, consistently with his evidence before Judge Garling, he acknowledged that the respondent was trying to hit him. It would obviously have been in Mr Nagra’s interest to accept the propositions that were being put to him that the respondent leaped back into the taxi and grabbed and punched him. But at Question 162 he said: “I don’t think he tried to punch me again when he came out”, although he may then have been referring to the third time.

76 I mention the foregoing as the primary judge found that Mr Nagra’s responses to Constable Beacroft were attempts by him to exculpate himself from the potential predicament he was then in given the injuries to the respondent. This finding is at odds with Mr Nagra’s inability to remember the respondent leaning back into the taxi and grabbing and punching him. Agreement with the suggestion being made in the questions would have been much more in his interests than the answers he gave. Those answers were hardly exculpatory.

77 Later in the interview he was asked how he believed the respondent fell and was injured. He replied (in his answer to Q233), “I have not seen that well. I can’t say anything how he fell down”. Then followed this question and answer:

“Q234 During the incident, do you recall the, the car coming into the, sorry, coming into contact with the man in any way?

78 There was no doubt that Mr Nagra denied in the interview that he reversed the taxi three times in the manner described by Mrs Jones as appears from the following questions and answers:

“Q238 How is it numerous witnesses claim they saw your vehicle going in reverse and that is when the man was struck by the door?

A (Int) Because I was to go further, being scared from that person OK. There was no purpose for me to going back, coming to the person. If I was reversing in a hurry, it might hit someone.

Q239 Kamaljit, how do you explain these witnesses saying they saw your car go backwards when you claim you weren’t going backwards? Why would they say that?

A (Int) So I don’t know really which side was going ‘cause he, that person grabbed me, my throat. He was saying to me that I’ll kill you. I was scared.

Q240 Kamaljit, I put it to you that this man was assaulting you so you accelerated harshly in reverse to try and get away from him and when you did so, he was struck by your car.

These answers were not accepted by the primary judge as being truthful in the light of the evidence of Jamie-Lee and Mrs Jones. The odd thing is that Mr Nagra did not (at least directly) accept that he was being assaulted by the respondent at the time he reversed as was being suggested to him and which accorded with the evidence of Jamie-Lee and Mrs Jones. The fact that he was being so assaulted would seem a good reason for him to “ try and get away from ” the respondent as the questioner suggested .

The findings of the primary judge with respect to Mr Nagra

79 At Red 22K–L, the primary judge indicated that he would only repeat some of Mr Nagra’s evidence because he found a large amount of it extremely difficult to understand and much of it unhelpful. He then recorded the following (at Red 22L–R):

“In describing the [respondent] alighting from the vehicle he [Mr Nagra] said, ‘He had gone out of the car and then came back into the car. I tried to get away from him and get out that place. He came again from outside the car and tried to hit me’. He said his full body was in the car ‘and then he went out of the car and then I did not see him and I reversed my car. I reversed my car, straightened its position, I stopped and saw the man lying beside the road’. Mr Nagra said he did not intend to hit the [respondent] with his taxi.”

80 I have been unable from the transcript of the evidence both before Judge Garling and his Honour to find the passages that contain the purported direct quotes from Mr Nagra’s evidence cited by the judge. However, the gist of these statements is consistent with Mr Nagra’s evidence.

81 The primary judge then noted that Mr Nagra had given evidence before Judge Garling and had made statements to two police officers, one on the day of the incident and another several days later when there was a walk-through of the accident site. His Honour then concluded (at Red 22U–23E) that

“[t]here was contradiction in the evidence he gave before me when he was cross-examined about the [respondent’s] position when Mr Nagra reversed. He said that, ‘then how he punched me’. I must say Mr Nagra was not willing to answer questions properly and in many of his answers he included riders, of which, I am of the view, were given to exculpate himself. When one looks at the evidence he gave before [Judge Garling] he again frequently did not answer questions and he again put in riders for which, I am of the view, were for the purpose of exculpating himself.”

82 I assume that in the second sentence of the above quotation from his Honour’s judgment he was referring to the third occasion when Mr Nagra reversed. However, this sentence does not seem to have any relation to that which precedes it. Senior counsel for the respondent referred the Court to a number of passages in Mr Nagra’s evidence including his police interviews which, so it was submitted, supported his Honour’s finding that there was a contradiction in the evidence he gave before him when he was cross-examined about the respondent’s position when Mr Nagra reversed.

83 I have looked at each of the passages in the evidence upon which reliance was placed but have some difficulty in ascertaining the contradiction to which his Honour was referring. Certainly, in the evidence relied upon Mr Nagra denied that he deliberately reversed into the respondent, at least for the purpose of injuring him, and he further denied that on the third occasion when he reversed that he was aware of the respondent standing at the open passenger door. This last part of Mr Nagra’s evidence his Honour was clearly entitled to reject given the evidence of the independent witnesses to the effect that on the third occasion when Mr Nagra reversed, the respondent was still leaning into the front of the taxi. The evidence clearly supported the finding that Mr Nagra was or ought to have been aware of the respondent’s presence at that time.

84 At Red 23H–N, his Honour summarised that part of the evidence of Mr Nagra relating to what occurred prior to his stopping in Malouf Place. He does not say whether or not he accepted Mr Nagra’s version of those events. He again said (at Red 23O) that there was nothing to be really gained by attempting to repeat Mr Nagra’s evidence. He then made the following finding (at Red 23S–X):

“I am of the view that to the police officers Mr Nagra also tried to exculpate himself by maintaining that he had lost sight of the [respondent] before driving off and driving off in a forward direction rather than accepting at that time that he had driven in the reverse direction. Mr Nagra also maintained to the police officers that he was concerned that the [respondent] would return to kill him or to commit serious injury upon him.”

85 At Red 24B–E his Honour accepted that the respondent did start an altercation with Mr Nagra before they arrived at Malouf Place and that at that stage the respondent assaulted Mr Nagra “in some manner by causing the damage to his clothing”. After referring to the evidence of “Mrs Travers”, to which I have referred at [22] above, his Honour continued (at Red 24H–L):

“Mr Nagra described the [respondent] opening the door, described the broken E-tag, the [respondent] trying to punch him and when asked questions about reversing, many of the answers given by Mr Nagra were, in my view, answers which were given to extricate himself from a difficult position. He consistently maintained to the police officers that he did not reverse and drove forward before reversing.”

86 The primary judge then stated (at Red 24T–25C) that the difficult factual determination was the earlier insistence of Mr Nagra that his vehicle went forward after the respondent had alighted from it in contradiction to the evidence of Mrs Jones and the Travis sisters “when quite clearly it was reversed on three occasions”. The other difficulty his Honour had with Mr Nagra’s evidence was his statement that the respondent had disappeared from sight and he thought he might return with a brick or something with which to kill or injure him when at all times the respondent was at or adjacent to the open passenger door.

87 His Honour then made the following finding at Red 25F–M:

“I do not accept that Mr Nagra lost sight of the [respondent] before he reversed his vehicle on any of the three occasions, the [respondent] was in sight of Mr Nagra at or about the doorway whether he was balanced or not, with his feet outside the door from the time he initially alighted from the taxi. I come to that view because of the evidence of the three independent witnesses which are consistent with the injuries that the [respondent] suffered. The witnesses in general terms are consistent with each other, that is the reversing vehicle, the [respondent] being at or about the open passenger’s side door and being in view of Mr Nagra.”

88 The primary judge then continued (at Red 25) with this theme stating that he did not accept Mr Nagra’s evidence

“that his vehicle had gone forward after the [respondent] had alighted … [this being] an attempt by him to distance he and his vehicle from the impact between he and the [respondent].”

“[a]t all times Mr Nagra, in my view, knew that the [respondent] was at the side of his vehicle in the incident and was able, because he knew that, to know that any reversing action would bring his taxi in contact with the [respondent] causing him imbalance and with the likelihood of falling to the roadway and being struck by the reversing vehicle and with the likelihood of suffering injury.”

89 At Red 26I–K his Honour found that in any event there was no need for Mr Nagra to reverse on three occasions. If he was concerned after the respondent had alighted from the vehicle on the first occasion, it was open to him in one movement to move his vehicle forward, to turn it around at the end of the street or “go backwards once”.

90 Then for the fifth time his Honour found (at Red 26L–N) that Mr Nagra often retracted that which he had said earlier in his evidence and “put in matters which I am of the view were matters which he thought may assist him”. Nevertheless, according to his Honour (at Red 26N–Q), Mr Nagra did say that after the respondent got out of the vehicle the punching and assaults ceased and that he denied, at least before Judge Garling, that he had driven in the manner described by Mrs Jones and had reversed on the occasion when the respondent was at the open passenger door. In my opinion, the suggestion that Mr Nagra said that after the respondent first alighted from the vehicle the punching and assault ceased, is simply contrary to the evidence not only of Mr Nagra but also of the independent witnesses whose evidence his Honour accepted: see [24] above.

91 At Red 27B–G his Honour made clear that he had carefully read the evidence of Mr Nagra given both before himself and Judge Garling and had observed him in the witness box. He concluded that he did not find Mr Nagra a credible witness “at all”.

92 After referring to the submissions of senior counsel for the appellant, his Honour then concluded (at Red 27J–K) that he should reject those submissions for whilst

“there was some shock he [Mr Nagra] suffered immediately post-accident, there was shock from the incident that had occurred between he and the [respondent] and the fact that he had driven his vehicle in the manner whereby the [respondent] was very seriously injured.”

In other words, as I understand what his Honour was saying, any real shock suffered by Mr Nagra was due to his realisation that he had deliberately injured the respondent.

93 His Honour then again commented upon Mr Nagra’s credibility, this time on a more conditional basis. He said (at Red 27N–P):

“Unless there is corroboration of his evidence, either by other witnesses or by facts which would support what he says, I have major difficulty in being able to accept anything that he says.”

94 This finding seems to be at odds with that referred to at [91] above, to the effect that his Honour did not find “Mr Nagra a credible witness at all”.

95 After again repeating that notwithstanding the evidence of the independent witnesses, Mr Nagra refused to accept that on three occasions he had reversed backwards when the respondent was within view, at Red 28D, his Honour declined to accept that Mr Nagra was in fear of his life as he said he was, again repeating that he did not accept his evidence that the respondent disappeared from view. He continued (at Red 28E–H):

and to

cause him injury

96 He then again repeated that the respondent was always within his view until the third reversing movement.

97 At Red 29F–Q, his Honour made the following findings:

“Mr Williams submits that I would find that the [respondent] continued to assault Mr Nagra up until the time he was injured. I do not so find. For the reasons with which I have indicated, in my view any assault by the [respondent] ceased, upon him alighting from the vehicle. I cannot find, and I do not because the evidence does not allow me, as to what occurred when the [respondent] again leaned back into the vehicle on the three occasions before Mr Nagra reversed but on reading Mr Nagra’s evidence, as best I can understand it, I accept that there was no further assaults from that time.

98 I shall return to this finding below, but in my view it is inconsistent with the evidence of Jamie-Lee and Mrs Jones to which I have already referred. As that evidence corroborated that of Mr Nagra in terms of the actions of the respondent when he re-entered the vehicle on two occasions, his Honour’s finding that there was no punching or assaults was clearly contrary to the evidence which he himself had accepted. It may be that his Honour was saying no more than that on each of the occasions when the respondent re-entered the front of the taxi there was no battery in the sense that his punches directed towards Mr Nagra did not actually strike him. This would be consistent with the evidence of Jamie-Lee and Mrs Jones. But there was clearly an assault on each of those occasions by the respondent upon Mr Nagra and although Mrs Jones referred only to a “commotion” indicating hands going around in a circular fashion in her cross-examination before the primary judge, the evidence of Jamie-Lee, which was unchallenged, was that she saw punching on each of the occasions when the respondent re-entered the front of the taxi and that she saw the top half of the respondent’s body inside the taxi “still trying to have a fight with the taxi driver”.

99 Having found that there was no assault continuing at the time that Mr Nagra drove his vehicle in reverse, his Honour concluded (at Red 30B-D) that Mr Nagra drove his vehicle in reverse to inflict injury upon the respondent on three occasions. On the same page his Honour repeated, once again, his finding that he did not accept that Mr Nagra believed the respondent was going to kill him or inflict any serious injury upon him; nor did he accept that the respondent assaulted Mr Nagra after the first reversing movement or after he had in fact alighted from the vehicle (presumably on the first occasion).

100 At Red 31 his Honour referred to s 52 of the CL Act. He accepted that it was open for the appellant to contend that Mr Nagra believed his conduct was necessary because of the perceived violence being inflicted upon him. However, he did not accept that that is what occurred. He said (at Red 31P–T):

“Mr Nagra, at no stage, says that is what he did and reluctantly conceded that in fact he did drive in reverse and did not concede that the [respondent] was in fact at his open door on each of the three occasions that he did reverse backwards. I do not accept … that when Mr Nagra reversed the vehicle he did not know where the [respondent] was.”

CL Act

101 After referring to ss 49, 52, 53 and 54 of the CL Act (at Red 32), his Honour found (at Red 33F–K) that on each of the three reversing episodes, Mr Nagra intended to cause injury to the respondent. He rejected the defence based on s 53 as he was of the view that any assault by the respondent on Mr Nagra and the former’s intoxication were not causative of Mr Nagra driving in the manner in which he did. As to s 54 of the CL Act, although he accepted (at Red 33Q–R) that the respondent’s conduct prior to leaving the vehicle was an offence punishable by at least two years imprisonment, he was of the view (at Red 33R–X) that that conduct did not contribute to the accident that occasioned the respondent’s injury in that it occurred

“before the [respondent] alighted from the vehicle and there was no serious offence taking place after the [respondent’s] feet touching the pavement. Should I be wrong in that view I am of the view that the [appellant], through his driver, drove in a manner which constituted an offence and that driving that caused the [respondent’s] injury by Mr Nagra’s conduct was an offence.”

102 Finally, at Red 34B–J, the primary judge accepted not only as a matter of probability but also beyond reasonable doubt that the respondent,

“being in clear view of Mr Nagra, being at his open door, standing, reaching into the car, that when he drove that vehicle back he was aware that he must throw him off balance and bring his vehicle in contact with him. He did that by braking quickly on two occasions and on the third drove at a fast speed without braking. That could only have been done with the intention of causing injury to the [respondent] and with the real risk that grievous bodily harm would be caused. Grievous bodily harm was caused and in my view such driving was negligent driving that caused grievous bodily harm to the [respondent].”

103 His Honour therefore found that the respondent’s injuries were caused by the appellant’s negligence and that none of the defences raised were established.

104 The primary judge then addressed (at Red 34Q–X) the question of the respondent’s contributory negligence. His Honour found contributory negligence to the extent of 25% due to the fact that the respondent had again positioned himself in the doorway of the taxi after he had been thrown off balance by the first reversing movement.

The submissions of the parties

105 The appellant in his written submissions challenged the following findings of the primary judge:

(a) The respondent ceased to assault Mr Nagra before the taxi pulled into Malouf Place (Red Book 24E);

(b) There was no physical contact at any moment and definitely no punching or assaults on Mr Nagra after the respondent first stepped out of the taxi (Red Book 29F);

(c) After the taxi stopped there was an altercation between Mr Nagra and the respondent and the former was also attempting to push or in some way move his hands towards the respondent (Red Book 27V);

(d) The respondent ceased to attack Mr Nagra when he first stepped out of the taxi in Malouf Place (Red Book 29H);

106 It was submitted that the evidence established that:

(a) The respondent continued to assault Mr Nagra by threatening advances or re-entries into the taxi, striking at and attempting to strike Mr Nagra after he stopped the taxi in Malouf Place and for the period that followed of approximately 30 seconds after he alighted from the taxi during which period Mr Nagra reversed the taxi on three occasions;

107 The appellant further submitted that his Honour had misunderstood the legal concept of “assault” and its discrete companion, “battery”. I have already made reference to this distinction and in my view his Honour overlooked it. As the appellant submitted, the mere re-entry by the respondent into the taxi, obviously against the wishes of Mr Nagra, would have itself constituted a trespass to property but, in light of the evidence of the Travis sisters and Mrs Jones, also constituted, at the very least, an assault or assaults.

108 On the basis of the evidence of the Travis sisters and Mrs Jones, it was thus submitted that his Honour’s critical finding that not only after the respondent left the vehicle for the first time was there no physical contact between he and Mr Nagra but also that there was “definitely no punching or assaults”, could not stand.

109 The last mentioned was an odd finding given his Honour’s earlier finding that he accepted that there was some altercation in the vehicle between Mr Nagra and the respondent after it had stopped. However, his Honour then indicated that he did not accept that “it was all the [respondent]” and accepted that Mr Nagra was also attempting to either push or in some way move his hands towards the respondent. He so inferred from the evidence of the Travis sisters. In my view that finding cannot be sustained in the light of their evidence unless it amounted to a finding that Mr Nagra was attempting to defend himself from the respondent’s attacks. However his Honour did not find that Mr Nagra’s movements were of this character.

110 The appellant also attacked the finding of the primary judge that on each occasion that Mr Nagra reversed his vehicle, he did so only for the purpose and with the intention of causing injury to the respondent. His Honour had found that there was no need for him to reverse on three occasions but only on one occasion and that he ought to have driven forward if he wished to rid himself of the respondent’s presence.

111 In fact, it was Mr Nagra’s evidence that he had, at least initially, moved forward and not reversed – evidence which his Honour rejected. It was never put to Mr Nagra in either his evidence before Judge Garling or before the primary judge that there was no obstruction to him proceeding forward if he had wished to do so. In actual fact, he had in his police interview indicated that there was a van 10 feet in front of him and children playing in the street. Nor was it suggested to him in cross-examination that he was incorrect in intimating that he could not move forward in the manner which the primary judge suggested he ought to have.

112 The respondent relied heavily upon the primary judge’s findings as to Mr Nagra’s credibility. He submitted that once those findings were accepted then the only evidence left was that of the Travis sisters and Mrs Jones together with the concession by Mr Nagra that if he had reversed, at least on the third occasion, in the manner in which it was said he did, and he was aware that the respondent was still half in and half out of his taxi, it was obvious that he would be thrown to the ground and injured.

113 The respondent submitted that as Mr Nagra had been comprehensively disbelieved, he could not satisfy the provisions of s 52(2)(a) of the CL Act as he could not have believed that his conduct in reversing was necessary in order to defend himself. Further, in the circumstances, his conduct in reversing, at least on the third occasion, was not a reasonable response in the circumstances, as he then perceived them to be.

The appeal should be allowed

114 The primary judge made a general finding with respect to Mr Nagra’s credibility but also made some specific findings rejecting certain aspects of his evidence. With respect to the latter, he first rejected the evidence of Mr Nagra that he had driven the taxi forward at any time, accepting that he reversed it three times in accordance with the evidence of Jamie-Lee and Mrs Jones. Second, he rejected Mr Nagra’s evidence that at the time of the third reversing movement, he was unaware that the respondent was at the side of his vehicle. Third, he rejected Mr Nagra’s denial that he intended to cause injury, let alone serious injury, to the respondent.

115 So far as the first two findings referred to above are concerned, it was open to his Honour to reject Mr Nagra’s evidence in the light of the independent evidence of Jamie-Lee and Mrs Jones which expressly established that Mr Nagra had executed three reversing movements and inferentially established that at each time the respondent had been standing half in and half out of the taxi and, therefore, that Mr Nagra should have been aware of his presence.

116 However, the primary judge’s rejection of Mr Nagra’s evidence that he did not intend to cause injury to the respondent, must have been based on two factors. The first was Mr Nagra’s concession in cross-examination before Judge Garling that it was possible that if a person was standing between the open door of the taxi and the body of the taxi and the taxi reversed, that that person could be thrown off balance by being struck by the open passenger door and therefore might fall under the vehicle. The second was Mr Nagra’s ultimate concession that his purpose in reversing the vehicle on the three occasions that he did was to shake off the respondent’s grip on the passenger door of the taxi. In this respect Mr Nagra conceded that he had told his solicitor that he had tried to escape from the respondent by repeatedly attempting to shake loose the respondent’s grip on the taxi’s passenger door by reversing. As he said, that was the only way he could escape him: see [69] above.

117 The primary judge does not seem to have given any credence to the reason proffered by Mr Nagra as to why he had attempted to escape from the respondent by reversing the vehicle. I would infer that this was the result of his finding that upon the respondent alighting from the taxi, presumably on the first occasion, and notwithstanding the clear evidence of Jamie-Lee and Mrs Jones that the respondent had on two occasions re-entered the taxi with the upper part of his body with both hands having released their grip on the passenger door, no punching or assaults by the respondent upon Mr Nagra had thereafter occurred. In fact, without any evidence to support it, his Honour held that he did not accept that Mr Nagra believed that the respondent was going to inflict any serious injury upon him. On the contrary, he seemed to imply that Mr Nagra was also attempting to, in effect, assault the respondent. It was as a consequence of those findings that in my view he found that Mr Nagra reversed the vehicle intentionally to throw the respondent off balance and to cause him injury.

118 So far as the primary judge’s general findings as to Mr Nagra’s credibility were concerned, he repeated on a number of occasions his view that his responses both in cross-examination as well as in the police interviews were intended by him to simply exculpate himself from the position in which he then found himself, namely, of being arrested as a consequence of the serious injuries sustained by the respondent. Further, having said that he did not find Mr Nagra a credible witness “at all”, in the very next paragraph his Honour indicated that he had difficulty in accepting anything Mr Nagra said unless there was corroboration of his evidence either by other witnesses or by facts which would support what he said. The problem however is that his Honour did not then attempt to determine whether any of Mr Nagra’s evidence was so corroborated, when in fact it was. In particular, his evidence that the respondent on each occasion he re-entered the taxi attempted to punch Mr Nagra was in my view corroborated, particularly by Jamie-Lee’s evidence and to a lesser degree by that of Mrs Jones.

119 In light of the evidence which I have set out above, there can be little doubt that at all times it was the respondent who was the aggressor and that it was open for his Honour to find that Mr Nagra did no more than was necessary to attempt to defend himself and escape from the repeated assaults which were then being perpetrated upon him. It is not surprising that in those circumstances, having attempted to escape from the respondent by reversing for only two feet on two occasions but without success, that on the third occasion Mr Nagra reversed further and more abruptly.

120 The fact is that the primary judge rejected the totality of Mr Nagra’s evidence, including those parts that were in fact corroborated by the independent witnesses. In particular, he rejected Mr Nagra’s evidence that on each of the occasions that the respondent re-entered the taxi he assaulted Mr Nagra by attempting to punch him. He also rejected Mr Nagra’s evidence that he was attempting to escape the respondent when he used the first two reversing movements, which were unsuccessful. He thus found that on each of the three occasions when Mr Nagra reversed the vehicle he did so with the intention of assaulting and causing injury to the respondent.

121 In my view, the primary judge’s rejection of the totality of the relevant evidence of Mr Nagra and, in particular, those parts thereof which related to the assaults upon him on the occasions when the respondent re-entered the taxi and the clearly unsuccessful attempts by Mr Nagra on the first two occasions when he reversed the vehicle to escape from the respondent’s aggressive conduct, has infected his findings generally.

122 After his Honour rejected that part of Mr Nagra’s evidence relating to whether he initially moved his taxi forward rather than reversing it and his denial that he was aware of the presence of the respondent at the time of the third reversing movement and accepting that those findings were justified, it did not necessarily follow that his Honour should have rejected all other parts of Mr Nagra’s evidence relating to the conduct of the respondent on the one hand and Mr Nagra’s reaction to it on the other, especially where he had given no consideration to whether that evidence was, in whole or in part, corroborated by the independent witnesses whose evidence he accepted.

123 As Ipp JA observed in the first appeal in this matter at [19] of his judgment, on the evidence of the Travis sisters, coupled with that of Mrs Jones, it was open to his Honour to make findings that throughout the period between the time the respondent alighted from the taxi until Mr Nagra began to reverse for the third time, the respondent was threatening Mr Nagra in a frightening way and attempting to assault him by punching him. In my view the evidence accepted by the primary judge clearly established those matters. Nevertheless, his Honour found to the contrary.

124 Again, as Ipp JA observed at [21] of his judgment in the first appeal, on its face the respondent’s conduct in re-entering the taxi on three occasions, despite Mr Nagra having twice attempted to shake him off by reversing for a couple of feet, invited the question: what was his purpose in doing that? When regard is had to the evidence of the Travis sisters, the inference was available that he was trying to get back into the taxi to punch Mr Nagra. Again, in my view, the evidence of the independent witnesses accepted by the primary judge clearly established that that was so. But again his Honour found to the contrary on the basis of his wholesale rejection of Mr Nagra’s evidence, even when it was corroborated. In fact the only part of his evidence his Honour accepted was Mr Nagra’s statement, in my opinion taken out of context, that the assaults perpetrated by the respondent ceased when he initially alighted from the taxi.

125 It might be said that although he accepted the evidence of Mrs Jones, he did not necessarily accept the totality of Jamie-Lee’s evidence particularly her evidence before Judge Garling, which was not challenged, that on each occasion when the respondent re-entered the taxi, punching was going on but she could not see who was punching whom. However, it defies common sense to suggest that the punching was being executed by Mr Nagra rather than the respondent given the circumstances relating to the assaults and batteries upon Mr Nagra immediately prior to the taxi entering Malouf Place which his Honour accepted had occurred.

126 Had his Honour’s refusal to accept any of Mr Nagra’s evidence not been infected in the manner I have suggested, and had he accepted so much thereof as was clearly corroborated by the evidence of the independent witnesses, it is but a small step to have accepted that, after failing on two occasions to escape the assaults of the respondent by reversing for two feet, Mr Nagra believed in the circumstances with which he was then confronted, that reversing for a further distance was necessary in order to escape from further attack. If this be so, it would be open to the tribunal of fact to find that Mr Nagra’s conduct was a reasonable response to the circumstances as he then perceived them within the meaning of s 52(2) of the CL Act. Such a finding, if made, would have been a complete answer to the respondent’s claim.

127 In my opinion the findings of the primary judge are so unsatisfactory that to allow them to stand would involve a serious miscarriage of justice. Accordingly, intervention by this Court is called for. However, it is not possible for this Court, any more than it was in the first appeal, to make its own findings with respect to Mr Nagra’s evidence as clearly issues of credit are still extant. Regrettably a further new trial is inevitable.

128 However, in the circumstances, it would be appropriate for this Court to order pursuant to ss 140(1) and (3) of the Civil Procedure Act 2005 that the proceedings be transferred to the Common Law Division of the Supreme Court. In this respect both parties assured us that, if successful, it was likely that the respondent would be awarded damages of more than $1 million. In my opinion, the provisions of s 140(3)(a) are satisfied in all the circumstances.

Conclusion

129 For the foregoing reasons, in my opinion the appellant’s challenge to the findings of the primary judge should be upheld. However, and regrettably, it is not possible for this Court to make the necessary findings and the matter will need to be remitted to the District Court for retrial. In these circumstances it is unnecessary to deal with the issue of contributory negligence raised by the respondent in his summons seeking leave to cross-appeal.

130 Accordingly I would propose the following orders:

(a) Grant leave to appeal to the applicant from the decision of Judge McLoughlin of 29 May 2008;

(b) Dismiss the respondent’s summons seeking leave to cross-appeal;

(c) Appeal allowed;

(d) The judgment of Judge McLoughlin of 29 May 2008 be set aside;

(e) The proceedings be remitted to the Common Law Division of the Supreme Court for retrial on all issues and that the retrial be expedited;

(f) The respondent to pay the appellant’s costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors’ Fund Act 1951, if other otherwise qualified;

(g) No order for costs with respect to the respondent’s summons seeking leave to cross-appeal;
(h) The costs of the trials before Judge Garling and Judge McLoughlin be determined by the trial judge at the remitted trial.

131 BASTEN JA: For the purposes of these reasons, it is convenient to refer to Mr Baxter, the Respondent in this Court as “the plaintiff”, as these are proceedings brought by him for damages for personal injury. On the same basis, it is convenient to refer to the Appellant as “the defendant”, that being the role he played at trial.

132 The injury, which occurred in 2005, involved the use and operation of a motor vehicle, namely a taxicab, owned by the defendant. The driver of the vehicle was Mr Nagra. Mr Nagra was not a party to the proceedings, which were brought solely against the owner, Mr Nagra being presumed to be his agent acting within the scope of the agent’s authority in relation to the vehicle, by virtue of s 112 of the Motor Accidents Compensation Act1999 (NSW) (“the 1999 Act”). The putative liability of the defendant was therefore a vicarious liability for tortious conduct on the part of the driver. So long as the conduct gave rise to liability for injury caused by “the fault of the driver of the vehicle in the use or operation of the vehicle” it mattered not whether the tort was intentional or negligent.

133 As Tobias JA has explained in detail, the process of fact-finding at the trial miscarried in material respects, warranting appellate intervention. Although this Court has power to make findings of primary fact and draw appropriate inferences (Supreme Court Act 1970 (NSW), s 75A(6)), it will generally be inappropriate to do so where, as in the present case, questions of credibility are likely to have a significant bearing on the outcome. There must therefore be a retrial on the question of liability, so long as the Court is satisfied that some substantial wrong or miscarriage has been occasioned by the identified errors: Uniform Civil Procedural Rules 2005 (NSW), r 51.53. That requirement is satisfied in the present case.

134 Tobias JA has proposed that the proceedings be transferred to the Supreme Court, in its Common Law Division. Power to transfer the proceedings from the District Court is available under s 140(1) of the Civil Procedure Act 2005 (NSW). There is, however, a series of limitations on the power to be found in sub-s 140(3) which provides:

135 There is no doubt that this is a claim for damages arising from personal injury. A “motor accident claim” is defined to have the same meaning as a “claim” has in the 1999 Act: Civil Procedure Act, s 3. Under the 1999 Act, a claim is a claim for damages in respect of injury to a person “caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”: s 3. The term fault is defined to mean “negligence or any other tort”. It was not in dispute that the present case involved such a claim. It was also accepted by both parties that, if successful, the plaintiff was likely to obtain damages in excess of $1,000,000. In this respect, the Court is entitled to act upon the statements of counsel, where no evidence has been called with respect to the degree of injury suffered by the plaintiff or the consequences.

136 It is, however, also a requirement of s 140(3) that the case involve complex legal issues or issues of general public importance. Satisfaction of this requirement is not so clear. So far, no issue of legal complexity has been identified; nor does a claim for damages by an individual injured in a motor accident self-evidently give rise to an issue of general public importance. On the other hand, the case does involve a question as to the limits of the appropriate response of taxi drivers to aggressive and dangerous conduct of passengers and the potential civil consequences of overreaction. Those might be described as matters of general public importance.

137 Before a case has been heard, it is difficult to say whether it “involves” any complex legal issue. As the history of the present matter demonstrates, particular factual determinations may render potential legal issues irrelevant. It is, however, sufficient that the case as pleaded and as likely to be presented will involve complex legal issues. Nor should too much weight be placed upon the use of the plural “issues”, rather than the singular: issues are often divisible.

138 There are, in fact, several issues of legal complexity raised by the present case. The first arises from the fact that it is unclear whether the plaintiff, even on his own case, should succeed in negligence or by way of an intentional tort. The applicability of relevant legal principles will depend on which categorisation is appropriate. Further, some of those legal principles, as encapsulated in statute, involve matters of legal complexity.

139 Certain provisions of the Civil Liability Act 2002 (NSW) do not apply to civil liability (including damages) “in respect of an intentional act that is done … with intent to cause injury”: s 3B(1)(a). That particular exclusion concerns the whole Act other than quite limited exceptions with respect to damages for loss of capacity to provide domestic services (ss 15B and 18(1)(c)) and Pt 7 dealing with self-defence and liability arising in respect of conduct involving a serious offence.

140 There is a second category of exclusion from the operation of the Civil Liability Act defined as “civil liability relating to an award to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies”: s 3B(1)(e). Chapter 5 of the 1999 Act applies, broadly, to all motor accident claims. It regulates the award of damages available in such matters and deals with aspects of contributory negligence.

141 The exception with respect to motor accidents is far more limited in that numerous parts of the Civil Liability Act continue to apply, including, again, Pt 7.

142 There is an additional minor complexity in relation to the operation of the Civil Liability Act, arising from the fact that the liability of the defendant in the present case is a vicarious liability, the defendant being the owner of the taxi and not the driver. Section 3C of the Civil Liability Act provides:

3C Act operates to exclude or limit vicarious liability

Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.”

143 Although s 3C is not one which is expressly applied with respect to claims excluded from the operation of the Act by limbs of s 3B, it may be inferred that the exclusion of “the whole Act” is not intended to exclude the provisions of Pt 1 in which ss 3B and 3C are found.

144 The trial judge accepted that the provisions of the 1999 Act applied, but that conclusion did not exclude any parts of the Civil Liability Act relevant for present purposes. More importantly, his Honour made no express finding as to whether the exclusion for intentional acts done with intent to cause injury applied. Nevertheless, he made findings of fact which would appear to entail that conclusion. Thus, his Honour stated:

(1) “I accept that Mr Nagra drove the vehicle in that manner to inflict assault upon the plaintiff, not just on one occasion but on three”: Judgment, p 11;

(2) “I do not accept … that when Mr Nagra reversed the vehicle he did not know where the plaintiff was”: Judgment, p 12;

(3) “In this instance there were three independent reversing episodes which I found were all carried out by Mr Nagra and I am of the view that they were carried out with the intention of causing injury to the plaintiff”: Judgment, p 14, and

145 Perhaps inconsistently with these conclusions, and, in particular, immediately after the fourth conclusion noted above, his Honour continued:

“Grievous bodily harm was caused and in my view such driving was negligent driving ….”

146 Assuming, as must be the case, that the findings of intention to injure were deliberately made, a question arises as to whether a defence of contributory negligence arose at all. The answer to that question depends upon the common law, which is generally applicable, as modified by statute: see Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 8; the 1999 Act, s 138(1); Civil Liability Act, ss 5R and 5S. Those provisions of the Civil Liability Act will not, however, apply with respect to an intentional tort: s 3B(1)(a). In New South Wales v Lepore [2003] HCA 4; 212 CLR 511 at [270], Gummow and Hayne JJ noted that “negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence”. The precise scope of that statement may require elucidation: see Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) Aust Torts Reports ¶81-928 at [367].

147 Whether a defence of contributory negligence is available in relation to an intentional tort intended to cause injury is at best doubtful: see State of New South Wales v Riley [2003] NSWCA 208; 47 NSWLR 496 at [104] (Hodgson JA, Sheller JA and Nicholas J agreeing); Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [121]-[128].

148 It is not necessary to conclude that the approach taken by the trial judge was wrong; it is sufficient to note that an issue with respect to the availability of contributory negligence will arise again at the retrial, if the conduct of Mr Nagra is held to give rise to liability and is held to have involved the intentional infliction of injury. That may properly be characterised as involving at least one complex legal issue.

149 A second defence relied upon by the defendant was the statutory form of self-defence to be found in s 52 of the Civil Liability Act. That section relevantly provides:

52 No civil liability for acts in self-defence

(a) was unlawful ….

and the conduct is a reasonable response in the circumstances as he or she perceives them.”

150 The “person” whose conduct and state of mind is relevant for present purposes must be the driver of the taxi, Mr Nagra. If Mr Nagra is not liable by reason of the operation of s 52(1), the defendant, arguably, would not be liable by reason of s 3C of the Civil Liability Act.

151 Subsection 52(2) provides a definition of conduct carried out in self-defence. It involves two limbs: first, a subjective belief of the person that the conduct is necessary for one of the prescribed reasons and, secondly, a partly objective assessment of whether the conduct is a reasonable response in the circumstances, as perceived by the person carrying out the conduct. (There is a danger in labelling the second limb as objective, because it depends upon the subjective perceptions of the person involved in the conduct.)

152 The trial judge, in applying s 52(2), stated at pp 12-13:

“It would be a prerequisite for Mr Nagra to establish, pursuant to s 52(2), that he believed his conduct was necessary. He gives no evidence in acceptance of that conduct to deal with what his perceptions were and as I have indicated I reject much of his evidence. Ultimately he said that when he reversed the vehicle, the plaintiff was not to be seen. That I do not accept. Accordingly, as s 52 only operates to exculpate a defendant if the conduct is a reasonable response in the circumstances that he perceives them, I do not accept that Mr Nagra’s driving, as I have found, was a reasonable response to the situation as it has arisen and I accordingly find that s 52(2) has no [application] in the context of this case.”

153 On the appeal, the defendant challenged the approach adopted by the trial judge in this passage on the basis that he was not precluded from relying upon the defence because Mr Nagra did not give relevant evidence as to his own perceptions. Reference was made to the judgment in Derek Denton Bonnick (1977) 66 Cr App Rep 266, in which the UK Court of Appeal held that, on a charge of unlawful wounding, where the defence was an alibi, self-defence should have been left to the jury if there were evidence sufficient to raise the issue: see also The Queen v Howe [1958] HCA 38; 100 CLR 448. However, care must be taken in applying criminal analogies; self-defence, despite its name, must be negatived by the prosecution in order to obtain a conviction. The principle remains good that a subjective state of mind may be inferred from circumstances other than the person’s own statement as to his perceptions. In the present case, although Mr Nagra acted in a manner which was inconsistent with a belief that the conduct was necessary in self-defence, his unequivocal evidence was that he was in fear, possibly of his life, at the time. As Tobias JA has demonstrated in detail, Mr Nagra appears to have prevaricated and lied, no doubt out of perceived self-interest, but with little appreciation of what was inculpatory and what exculpatory.

154 In the passage set out above, his Honour erred in suggesting that it was a “prerequisite” for Mr Nagra to establish any matter: Mr Nagra was not a party to the proceedings. What his Honour appears to have meant was that the only way in which he could be satisfied as to Mr Nagra’s perceptions was if Mr Nagra gave evidence of them which was accepted. As a practical matter, that will often be true, but it is not necessarily so. As Tobias JA has explained, there are difficulties implicit in findings that Mr Nagra’s evidence could not be accepted at all, or only where corroborated, without there being any serious attempt to identify those parts which were true and those which were not.

155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].

157 There are other curiosities in the approach adopted by the trial judge on the second hearing. For example, in purporting to set out the terms of various provisions of the Civil Liability Act, including s 52, he in fact paraphrased the provisions in a manner which was erroneous in significant respects: Judgment, p 13. The application of s 52 is likely to arise and to involve complex legal issues.

158 Reliance was also placed by the defendant on s 53 of the Civil Liability Act which would preclude recovery even were the conduct not a reasonable response in the circumstances, unless the Court were satisfied that the circumstances were exceptional and a failure to award damages would be harsh and unjust: s 53(1). The application of this provision, which could well arise depending on the findings of fact, may itself involve novel and complex legal issues.

159 Finally, the defendant relied upon s 54 of the Civil Liability Act which precludes a court awarding damages in respect of liability if satisfied that the injury occurred “at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence”, which conduct materially contributed to the injury or risk of injury. However, the defence is not available if the conduct of the defendant constituted an offence: s 54(2). Again, the application of these provisions may give rise to complex legal issues.

160 For these reasons, in addition to those given by Tobias JA, I agree with the orders proposed by his Honour.

161 HANDLEY AJA: I agree with Tobias JA and with the additional reasons of Basten JA.

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Citations

Sangha v Baxter [2009] NSWCA 78

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CITATION:	Sangha v Baxter [2009] NSWCA 78
HEARING DATE(S):	2 March 2009
JUDGMENT DATE:	9 April 2009
JUDGMENT OF:	Tobias JA at 1; Basten JA at 131; Handley AJA at 161
DECISION:	(a) Grant leave to appeal to the applicant from the decision of Judge McLoughlin of 29 May 2008; (b) Dismiss the respondent’s summons seeking leave to cross-appeal; (c) Appeal allowed; (d) The judgment of Judge McLoughlin of 29 May 2008 be set aside; (e) The proceedings be remitted to the Common Law Division of the Supreme Court for retrial on all issues and that the retrial be expedited; (f) The respondent to pay the appellant’s costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors’ Fund Act 1951, if other otherwise qualified; (g) No order for costs with respect to the respondent’s summons seeking leave to cross-appeal; (h) The costs of the trials before Judge Garling and Judge McLoughlin be determined by the trial judge at the remitted trial.
CATCHWORDS:	APPEAL – appeal – general principles – interference with Judge's findings of fact – functions of appellate court – findings on issue of negligence – where findings based on credibility of witnesses – where findings clearly wrong – particular cases – whether acts causing injury were carried out in self defence – whether contributory negligence established – whether injury occurred following commission of a serious offence by injured party – power to transfer proceedings in the District Court on a claim for damages to the Common Law Division of the Supreme Court – whether the case involves complex legal issues or issues of general public importance
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 District Court Act 1973 Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Compensation Act 1999 Suitors’ Fund Act 1951 Supreme Court Act 1970
CASES CITED:	Derek Denton Bonnick (1977) 66 Cr App Rep 266 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 King v Collins [2007] NSWCA 122 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) Aust Torts Reports 81-928 New South Wales v Lepore [2003] HCA 4; 212 CLR 511 Sangha v Baxter [2007] NSWCA 264 State of New South Wales v Riley [2003] NSWCA 208; 47 NSWLR 496 The Queen v Howe [1958] HCA 38; 100 CLR 448
PARTIES:	Balraj Sangha Peter Marshall Baxter BHNF Laurna Baxter
FILE NUMBER(S):	CA 40265/08
COUNSEL:	A: M B Williams SC / R O'Keefe R: D Wheelahan QC / K Andrews
SOLICITORS:	A: Vardanega Roberts, Sydney R: Keddies, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2751/06
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	29 May 2008