Seekamp v Nominal Defendant - [2008] SASC 320

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SEEKAMP v NOMINAL DEFENDANT
[2008] SASC 320
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
20 November 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - NECESSITY FOR FINDING TO BE CLEARLY WRONG
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS
Appeal from dismissal of claim for damages for personal injuries following trial - proceedings issued against Nominal Defendant pursuant to s 115 of Motor Vehicles Act 1959 (SA) - issue at trial was whether appellant had been hit by unidentified motor vehicle causing his injury - trial judge considered eyewitness evidence of appellant and appellant's brother unreliable - trial judge found that appellant had not been hit by unidentified motor vehicle causing his injury - whether trial judge adequately considered evidence led at trial as to what caused appellant's injury.
Held: Appeal dismissed - trial judge adequately considered evidence - trial judge did not err in not considering causes of injury which were not supported by evidence.
Motor Vehicles Act 1959 (SA) s 115, referred to.
Fox v Percy (2003) 214 CLR 118, applied.
Papps v Police (2000) 77 SASR 210; Sun Alliance Insurance Ltd v Massoud [1989] VR 8, considered.

SEEKAMP v NOMINAL DEFENDANT
[2008] SASC 320
Full Court: Gray, Sulan and David JJ
GRAY J.

This is an appeal from the dismissal of a claim for damages following a trial in the District Court.
Ashley Cameron Seekamp, the plaintiff and appellant, claimed damages from the nominal defendant, the defendant and respondent. Mr Seekamp claimed that he had been struck by a motor vehicle and as a consequence sustained a serious leg injury. The issue at trial was whether there had been any collision at all, or whether Mr Seekamp had injured his knee through some other incident.
The trial Judge dismissed the claim, concluding that she was not satisfied that Mr Seekamp had established that a collision had occurred between himself and a motor vehicle.
The trial Judge concluded that Mr Seekamp and his brother, the suggested witnesses to the incident, were unreliable witnesses. The Judge was not prepared to act on their evidence. In reaching this conclusion, the Judge had regard to the inconsistent accounts of the incident given by Mr Seekamp. Initially, Mr Seekamp spoke of tripping in the gutter. His assertion that he had been struck by a motor vehicle was not made until about 10 days later. The fact that Mr Seekamp provided glaringly inconsistent accounts of how he sustained the injury, together with other factors identified by the Judge, led to the conclusion that his testimony was unreliable.
David J has set out in his reasons the history of the matter, has summarised the relevant evidence and the trial Judge’s findings. David J has reached the conclusion that the appeal should be dismissed. I respectfully agree with the reasons and conclusions of David J. I wish, however, to add the following further observations.
The High Court, in Fox v Percy,[1] considered the nature of the appellate process, in particular when the appellate court is reviewing findings by a trial judge of fact and findings of credibility and reliability of a witness. Gleeson CJ, Gummow and Kirby JJ concluded that a finding of fact by a judge, based on the credibility of a witness, may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrated that the judge’s conclusions were erroneous, or where it is concluded that the decision of the trial judge was glaringly improbable or contrary to compelling inferences in the case. Their Honours observed:[2]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in ... operation”.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
[1] Fox v Percy (2003) 214 CLR 118.
[2] Fox v Percy (2003) 214 CLR 118 at [25]-[27] (footnotes omitted).
As David J has observed, the trial Judge explained her reasons for the rejection of Mr Seekamp’s evidence, and in particular the reasons for her conclusion that his evidence was neither credible nor reliable.
On appeal, it was suggested that her Honour’s reasons were inadequate. Two primary purposes for reasons are to explain to the litigants the reasons for the judgment of the Court, so that justice may be seen to have been done, and to enable an appeal court to ascertain the reasoning on which the judgment is based, so that it can properly undertake the task of appellate review. The reasons of the primary Judge in the present proceeding amply fulfil both requirements.[3] In my view this submission should be rejected.
[3] Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18; Papps v Police (2000) 77 SASR 210 at 214-219.
As the argument developed on appeal, it became apparent that the complaint being advanced was that the trial Judge had failed to address an important aspect of Mr Seekamp’s claim. On appeal it was accepted that Mr Seekamp was an unreliable witness. However, it was suggested that he had reconstructed how the blow to the knee had occurred. He contended that he had been struck a glancing blow to an unspecified part of his body by a passing motor vehicle, and that the effect of the blow was to fling his body toward the gutter and behind his brother’s car. It was then contended that in the awkwardness of his fall, damage to his left knee was sustained. It was argued that this scenario was the probable explanation for the injury to the knee, and in particular had the support of medical expert opinion.
Two difficulties confront this submission. The suggested scenario was no more than a possibility based on speculation. Mr Seekamp’s account at trial, and his earlier incident accounts, suggested different incidents and mechanisms of injury. There was no evidence from Mr Seekamp or his brother to allow a finding that this is the way the incident occurred. The other difficulty is that only one of the three medical experts expressed the view that such an incident was a likely cause of the injury, and a close analysis of the evidence of that expert would suggest that this was a heavily guarded and qualified opinion. The other two experts considered that an incident not involving a motor vehicle could readily have explained the injury – that is, a tripping in the gutter.
Although the trial Judge did not expressly consider this speculative scenario, it is evident from her reasons that she did not consider that the facts supported the speculation, and certainly not to the point of satisfying Mr Seekamp’s burden of proof. There is no substance to this complaint.
In my view there is no substance to the complaints made on appeal, and the appeal should be dismissed.
SULAN J. I would dismiss the appeal. I agree with the reasons of David J.
DAVID J. This is an appeal from the judgment of a District Court judge dismissing a claim for personal injuries.
Background
The appellant (the plaintiff at trial) claimed that on 19 December 2003 he had suffered damage to his left knee when, as a pedestrian, he was hit by an unidentified vehicle on Lower North East Road, Campbelltown.
At trial, the appellant proceeded against the Nominal Defendant, pursuant to s 115 of the Motor Vehicles Act 1959 (SA) (“the Act”). There was no dispute that the appellant had undertaken due inquiry and search as required by s 115(1)(b) of the Act and had provided notice as required by s 115(3) of the Act. The issue at trial was whether it was proved that the appellant had been hit by an unidentified motor vehicle, thus causing his injury.
The appeal focuses on whether the trial judge adequately dealt with the circumstances of the appellant’s injury in her reasons for dismissing the claim, and, in particular, whether she adequately dealt with certain aspects of the medical evidence that was led at trial.
Evidence at Trial
The appellant gave evidence and called his brother. In addition, three orthopaedic surgeons were called, namely, Mr Rory Montgomery, Mr Adrian von der Borch and Mr Robert Atkinson. In addition, the appellant called his mother, Lynette Seekamp. The respondent called no oral evidence. The parties tendered written material, including notes from the Royal Adelaide Hospital, the Glenside Hospital and the appellant’s general practitioner, of Brooker Medical Clinic.
The appellant’s evidence at trial
The appellant gave evidence that he is aged 26 years. He said that on the evening of the incident he went to a friend’s house at Hectorville with his brother, Justin Seekamp. They travelled in his brother’s motor vehicle. Whilst there, the appellant consumed six stubbies of beer and both he and his brother smoked “a little bit of pot”. When they left the friend’s house to return home at around 11.45 pm, his brother drove and they travelled north‑east along Lower North East Road, Campbelltown. The appellant wanted to stop at a service station, located on the opposite side of the road, to buy some cigarettes. His brother missed a turnoff in the median strip, and instead of performing a u-turn to park in front of the service station, he stopped the vehicle on the opposite side of the road, facing the north-easterly direction in which they had been travelling. The appellant intended to alight from the vehicle and walk across the road.
The appellant gave evidence that he stepped out onto the footpath on the passenger’s side of the motor vehicle, walked around the back of the vehicle and proceeded to step out onto the road behind the vehicle, having looked both ways several times. He said that as he stepped out onto the road, a motor vehicle hit him. The appellant said he had not seen the vehicle before it hit him. He told the court that he was “swiped” by the motor vehicle and that it was the back left wheel arch that came into contact with his left knee. The appellant said he was “thrown” to the ground, directly behind his brother’s motor vehicle. He said he screamed out to his brother, who rushed around and helped him back into his vehicle.
While being driven home in his brother’s motor vehicle, the appellant told his brother that he thought he had dislocated his knee. However, they did not call an ambulance because he did not think the injury warranted it.
When the appellant and his brother arrived home, the appellant told his mother that he had injured his leg in a fall. His mother called an ambulance, which subsequently arrived and took him to the Royal Adelaide Hospital. Whilst in the ambulance, the appellant told the ambulance officers that his foot had been caught in drainage. He said in evidence that he told these stories to both his mother and the ambulance officers because his mother suffers from multiple sclerosis and he was concerned that if he had told her that a motor vehicle had hit him, the stress would have caused her condition to worsen.
After arriving at the Royal Adelaide Hospital, the appellant was assessed and subsequently had surgery. He was an in-patient at the hospital from 20 December 2003 to 24 December 2003.
After the appellant was released from hospital, he saw his general practitioner, Dr Cormie, of Brooker Medical Clinic, on 29 December 2003. The appellant told Dr Cormie that he had been hit by a motor vehicle. Prior to talking to Dr Cormie, he said he still had not told his mother that the motor vehicle accident was the cause of his injury. Dr Cormie advised the appellant to contact the compulsory third party insurer, Allianz.
The appellant contacted Allianz and eventually made a claim. During the process of making the claim, the appellant reported the matter to the Norwood Police Station and also advertised for witnesses in the local newspaper on two occasions.[4] The appellant agreed in evidence that in the advertisements he described the motor vehicle that hit him as “a white VS Commodore”. He said the reason he described the vehicle in those terms was that the wheel arch that actually hit him was flat and not round, which to him, was indicative of a VS model Commodore. Other than the nature of the wheel arch, the only thing he could remember about the motor vehicle from that night was that it had thumping music playing.
[4] Seekamp v The Nominal Defendant (District Court of South Australia, Judge McIntyre, 18 February 2008 to 22 February 2008), Exhibit P2, The “East Torrens Messenger”, 16 June 2004 and 23 June 2004.
In cross-examination, the appellant again said that he had told his general practitioner, Dr Cormie, what he says was the true story, on 29 December 2003. He agreed that he was a patient in the Royal Adelaide Hospital from 20 December 2003 until 24 December 2003 and accepted the proposition that whilst he was there he never told anybody what he says was the true story. He agreed that on the way to the hospital he did not tell the ambulance officers the true story about how he was hit by a motor vehicle. He also did not disagree, but could not remember, that upon arrival at the Royal Adelaide Hospital he had told a Dr Holmes that he had caught his foot in the gutter. The Royal Adelaide Hospital notes, which were tendered at trial, indicate very clearly that the appellant had told staff at the hospital that he had caught his foot in the gutter and that was the reason his knee twisted.
In cross-examination the appellant also admitted that when he saw Mr Adrian von der Borch, consultant orthopaedic surgeon, he gave a more elaborate description of the accident than what he actually remembered. The appellant agreed that when asked how the accident had happened, he told Mr von der Borch that “a vehicle had come out from a side street 20 or 30 m [to his left] and appeared to be purposely ‘fishtailing’ for some reason”.[5] This was is in contrast to his evidence that he did not see the motor vehicle before it hit him.
[5] Ibid, Transcript of proceedings, A Seekamp XXN, p 93 lines 9‑11 (“TX p 93 lines 9‑11”).
It can be seen that the trial judge was faced with evidence about a motor vehicle accident that was inconsistent with the version the appellant had given to his mother, ambulance officers and staff at the Royal Adelaide Hospital. According to the appellant, other than the possible exception of his brother, the first person to whom he told the true story was Dr Cormie on 29 December 2003. The trial judge was also faced with a version that was inconsistent in detail with what the appellant had told Mr von der Borch. It was also inconsistent in detail with the advertisements he had placed in the newspapers seeking witnesses, both as to the description of the motor vehicle and as to the time that he said the accident occurred (in his evidence he said it was about midnight, whereas in the newspaper advertisements he said it was about 11 pm).
Justin Seekamp’s evidence at trial
Justin Seekamp, the appellant’s brother, gave evidence that the appellant alighted from the passenger side of the motor vehicle and ran around to the back of the vehicle. He said he then heard a screech and a bang. He looked around for his brother and then got out of his vehicle. He saw a light or white coloured Commodore travelling down the left-hand side of the road. Justin Seekamp said he did not actually see the accident. He said he was present when the appellant told both his mother and the ambulance officers the stories that he had injured his leg in a fall and caught his foot in drainage. Justin Seekamp gave evidence that he continued to lie about how his brother sustained the injury after his brother had gone to hospital and when he was talking to their mother, Lynette Seekamp.
Lynette Seekamp’s evidence at trial
The appellant’s mother, Lynette Seekamp, was also called to give evidence. Ms Seekamp confirmed the evidence that when her sons returned home that evening, and before the ambulance arrived, she was told that the appellant had injured his leg by tripping into the gutter. She said no mention was made of a motor vehicle accident. Ms Seekamp thought the first time the appellant told her a motor vehicle accident caused him to sustain the injury was when he was an in‑patient at the Royal Adelaide Hospital.
The medical evidence at trial
Mr Rory Montgomery, orthopaedic surgeon, gave evidence that he saw the appellant on a number of occasions throughout 2005, 2006 and 2007. Mr Montgomery described the injury, which is the subject of the action, as “a fractured left tibial plateau”. He further described such an injury as “a high energy type injury”. Mr Montgomery said it was consistent with being struck from the left side and being struck on the lateral aspect of the left knee. Mr Montgomery said it was consistent with being struck with something akin to the bumper bar of a motor vehicle. Mr Montgomery said, bearing in mind the age of the appellant, it was not the type of injury one would expect to have been caused by a trip. In cross-examination, Mr Montgomery agreed that the Royal Adelaide Hospital notes did not indicate any external damage to the knee consistent with being struck as described by the plaintiff. However, in giving his opinion, he made no assumptions about any direct impact to the knee.

Mr Adrian von der Borch, consultant orthopaedic surgeon, gave evidence that he was of the opinion that either of the two versions, namely the appellant’s version at trial or what he told his mother and the ambulance officers on the evening in question, could have caused the injury to his knee. In evidence in chief Mr von der Borch said:[6]
Q.That angulation and rotation injury, Mr Montgomery indicated it was a high impact high energy type of injury and that it wouldn’t arise from just tripping over a kerb or catching a foot in a gutter. Do you have any comment to make about that.
A.I think as I have commented in the report it would seem less likely when we’ve got two stories but it’s very misleading to have two scenarios into the one injury and in my opinion probably either of them could bring about the injury that we’ve seen.
[6] Mr A von der Borch XN, TX p 204 lines 19‑28.
In cross-examination, when questioned about his report dated 28 September 2006, in which he stated, “A vehicle came out from a side street about 20 or 30 m to his left and appeared to be purposely ‘fishtailing’ for some reason”,[7] Mr von der Borch confirmed that this information was based on the history he had obtained directly from the appellant when the appellant was describing the accident to him.
[7] Mr A von der Borch XXN, TX p 206 line 36 - p 207 line 1.
Although Mr von der Borch was of the opinion that a motor vehicle accident could have caused the injury, he gave the following evidence:[8]
[8] Mr A von der Borch XXN, TX p 210 line 31 - p 212 line 21.
Q.I think you have expressed the view that a motor vehicle incident could also cause this injury.
A.Definitely.
Q.The plaintiff says that as he was stepping out onto the roadway his knee was struck by a vehicle going past and he says that he believed it was the rear of the rear wheel arch that struck his knee. The damage that we are referring to to the knee, if we are referring to any impact on the knee, do you agree with me that that is impact on the lateral side of the knee rather than the medial.
A.If the car hit him you mean?
Q.If this man is struck by anything and caused this fracture, the blow’s on the lateral side of the knee not on the medial.
A.To cause this fracture the blow would normally be on the lateral side, yes.
Q.Is that as referred to in your report, perhaps not specifically in that context, but in your second report, 29 March 2007, the second paragraph you say he suffered a fracture and then you go on to say “This injury is sometimes called a bumper bar injury because when first described it was associated with the knee being struck on the outer side by a motor vehicle” and I have used the word “lateral”; is that the same impression that you were conveying in that paragraph, when you said “struck on the outer side” you were referring to the lateral side of the knee.
A.I used “outer” so you would understand.
Q.And I did. I had to look up what “lateral” meant. By that, and so we are entirely clear, what you are referring to is that the impact is a blow to what I might describe as the left-hand side of the left knee.
A.Correct, yes.
Q.And it is a blow that is going across from left to right, isn’t it.
A.Yes.
Q.And that is what you are referring to.
A.Yes.
Q.When you say this injury that this man suffered consistent with these types of injuries is a blow to the lateral side going left to right.
A.Yes.
Q.That’s what you are referring to.
A.Yes.
Q.If there was a direct blow to this man’s knee by being struck by a motor vehicle, you would expect there to be some form of contact damage to the knee, wouldn’t you, abrasions, bruising and the like.
A.Yes, I would.
Q.Have you had the chance to look through the Royal Adelaide notes to see if there is any such evidence of that.
A.No, as far as I could see it wasn’t recorded.
Q.There didn’t appear to be any record of bruising or any sort of information to indicate external damage to the knee area consistent with contact.
A.Correct.
Q.If it were the case that this man did not have such evidence - so, there was no abrasions or bruising or evidence of contact with the knee - would you accept that therefore it is unlikely that his knee was struck.
A.It would certainly make it less likely.
Q.And again I am not suggesting that you can’t still injure your knee in a scenario but it is not just likely to be as a result of a direct blow.
A.Yes.
As can be seen, Mr von der Borch was of the opinion that if the injury was caused by direct impact with a motor vehicle, the impact would have been to the left side of the left knee, and that without external damage to the knee, it was less likely the injury to the knee was sustained from direct impact.
The final orthopaedic surgeon to give evidence was Mr Robert Atkinson. When presented with the two scenarios, Mr Atkinson was of the opinion that the motor vehicle incident, as described by the appellant in evidence, was more likely to have caused the appellant’s injury than the tripping in the gutter incident. However, he said the motor vehicle incident required some damage to the side of the knee where impact occurred. Mr Atkinson gave the following evidence:[9]
[9] Mr R Atkinson XN, TX p 303 line 33 - p 304 line 18.
Q.You said at p 3 para 2 in your report that you noted the different histories and that there you said that the motor vehicle story is the most likely, you said it is certainly not clear, and do you say that is the most likely because of the kind of force that is required.
A.Just to clarify; I’m saying the most likely is the bumper bar injury but that requires some damage to the side of the knee where the impact occurred and on that basis I was more accepting of the story of the indirect mechanism of injury.
Q.You see an indirect mechanism of an injury still involving a motor vehicle.
A.Yes.
Q.Can you describe that indirect mechanism involving the motor vehicle injury.
A.Sorry?
Q.By that I mean, if your view is there wasn’t a direct impact with the knee, that this injury is not caused by a direct blow from a motor vehicle but rather, indirectly by the motor vehicle, can you explain the mechanism.
A.He would flick back or jump back or be flicked back then land awkwardly with a heavy stress on the knee which would then cause the tibial plateau fracture.
Mr Atkinson also gave the following evidence:[10]
Q.If in fact it were the case that you are presented with two scenarios, one, that this man jumped backwards, caught his foot in a drain, twisted and fell, sustained the injury, or in the process of perhaps avoiding a motor vehicle, jumped backwards, planted the foot, twisted and hurt it, on the basis of those two scenarios without further details you agree they were of equal likelihood, one is as likely as the other.
A.Yes.
As can be seen, Mr Atkinson was of the opinion that the damage to the appellant’s knee could have been caused by a motor vehicle accident without direct impact. In other words, what he called an “indirect mechanism of injury”.
[10] Mr R Atkinson XXN, TX p 309 lines 26‑33.
The Judge's Reasons
The trial judge found that it had not been proved that the motor vehicle accident occurred at all. She said in her reasons:[11]
[11] Seekamp v The Nominal Defendant [2008] SADC 24 (Unreported, Judge McIntyre, 7 March 2008) [15].
I found the evidence of the plaintiff and his brother concerning the circumstances of the accident and subsequent events to be vague, internally inconsistent and in many respects at odds with each other’s evidence. There were a number of areas in which their evidence was unsatisfactory leading me to a conclusion that it was unreliable.
The trial judge set out in detail the main reasons for coming to that conclusion. They can be summarised as:
·the fact that the appellant told his mother and ambulance officers the story about having tripped and/or caught his foot or leg in the gutter or drain;
·the fact that the appellant’s brother did not dispute that story at the time;
·the fact that the appellant told a similar story whilst at the Royal Adelaide Hospital when giving a history of events;
·the fact that the trial judge was unimpressed with the explanation that both brothers gave for telling the false story;
·the fact that the appellant lied to Mr von der Borch when giving details about the motor vehicle which supposedly hit him, when he said in court he did not see the vehicle at all; and
·the fact that the time the appellant said the accident happened in evidence varied from the time that he said the accident happened in the advertisement in the local newspaper.
On her observations of both witnesses and bearing in mind the inconsistencies, as the trier of fact, the trial judge came to the conclusion that their evidence was “unreliable and unsatisfactory”.
The trial judge also came to the view that the appellant’s version as to how the accident occurred was inconsistent with certain aspects of the medical evidence, in particular the fact that there was no evidence of a direct blow to the knee, and that such a blow should have occurred to the left knee in a left to right direction for the injury to be sustained in the way that he described. In coming to this conclusion, the trial judge was conscious of the difference of opinion between the orthopaedic surgeons as to what may have caused the injury and whether it was consistent with tripping or a motor vehicle accident. The trial judge was impressed by the fact that there was no objective evidence of a direct blow to the knee, which would seem to be necessary to support the appellant’s story.
Arguments on Appeal
The appellant’s argument on appeal is a succinct one. Mr Austin, counsel for the appellant, argues that the trial judge failed to make a finding as to how the injury actually occurred. As I understand the argument, the trial judge found that it had not been established on the balance of probabilities that the appellant suffered the injury in a motor vehicle accident, however, she did not make a positive finding as to how the accident actually had occurred. Mr Austin argues that part of the process of reasoning in rejecting the evidence of the appellant and his brother was that there was no objective medical evidence of damage to the appellant’s knee that would be consistent with his story. However, he argues that a possible explanation is the mechanism described by Mr Atkinson as the “indirect mechanism of injury”. Mr Austin argues that the trial judge has erred in confining herself to the explanation given by the appellant and not giving consideration to the possible basis put by Mr Atkinson, resulting in a miscarriage of justice. Mr Austin further argues that the appellant’s evidence does not clearly establish that he was actually hit in the knee.
Mr Walsh QC, for the respondent, argues that the trial judge carefully assessed all of the evidence, including the medical evidence, and found very clearly that it had not been proved that there was any motor vehicle accident. Mr Walsh argues the trial judge did not have to deal with every possible scenario that might be put forward as to how a motor vehicle accident may have happened.
On looking at the evidence, I am of the view that the appellant clearly said that he was hit in the knee. In evidence in chief, he said:[12]
Q.When you say you were hit, can you describe what you mean by that.
A.I wasn’t actually hit front-on by the car, I was swiped by the car.
Q.When you say you were swiped by a car, can you recall what part of the car you were swiped by.
A.The back left wheel arch.
Q.What then happened.
A.I was thrown back behind my brother’s car.
It can be seen that the appellant was not asked during his evidence in chief and did not give evidence during his evidence in chief as to where he was hit.
[12] A Seekamp XN, TX p 27 line 15 - p 27 line 23.
In cross-examination the appellant gave the following evidence:[13]
[13] A Seekamp XXN, TX p 99 line 24 - p 101 line 28.
Q.At the end of the day yesterday I was asking you some questions about the way in which the vehicle sideswiped you.
A.Yes.
Q.And I’d asked you to explain what you had meant by that and I think you’ve given us your answer to that. Do I understand your evidence to be that your left knee was struck by the wheel arch or some part of the wheel arch of the vehicle.
A Yes, that’s correct. That’s what I think, yes.
Q.Was any other part of your leg in contact with that vehicle.
A.I wouldn’t be able to say, no.
Q.For example, did your foot get hit by the vehicle
A.Not to my knowledge, no.
Q.As far as you recall - and it is your evidence - only your knee was hit by that vehicle.
A.Yes, I suppose.
Q.You’ve described it as a sideswipe and I understood you to mean that it wasn’t a front on impact with your knee; your knee was struck by the vehicle as it drove past you.
A.That’s right.
Q.As far as you recall, I think it was your evidence yesterday, that the knee came in contact with the wheel arch of that vehicle and specifically the rear wheel arch of that vehicle.
A.That’s correct, yes.
Q.Are you able to say within any further detail about which part of the wheel arch we’re talking about. For example, obviously the wheel arch itself is sort of a bit of an empty space.
A.Yes.
Q.And I’m sure you’re not meaning to suggest that your knee just went in the empty space and didn’t hit anything, it must’ve hit something. So can you assist her Honour as to what part of that vehicle actually came in contact with your knee.
A.I think it would’ve been the very back of the wheel arch, closer to the bumper bar.
Q.Do you know, for example, whether the wheel arch had any mud flap guards or other guards on there.
A.No, I can’t say I saw anything like that, no.
Q.And it’s not the case that your recollection is that your knee came in contact with anything like that.
A.No.
Q.Your recollection is that it was sideswiped, there was contact between your knee and the rear of the wheel arch of this vehicle that was driving past.
A.That’s correct, yes.
Q.And can you tell her Honour the, sort of the nature of that contact. Was it just barely touching, hardly anything at all or do you have a - is it your evidence that the contact between your knee and this vehicle was actually quite significant.
A.Well it threw me back behind my brother’s car so I’m just guessing that yes, it was pretty severe with the contact because for that to actually throw me back, yes.
Q.I’ll deal with the issue of being thrown back in a minute.
A.Yes.
Q.But I guess what I’m interested in knowing is whether you have a recollection of how severe that impact was irrespective of whether you were thrown back or not.
A.No, I don’t have a recollection of that, no.
Q.But you are of the view that it must’ve been quite significant because it threw you back.
A.That’s right, yes.
Q.And by that, do I understand you to mean that as a result of this vehicle hitting your knee you were then thrown back.
A.That’s correct, yes.
Q.    It’s not the case – you’re not suggesting that you jumped back out of the way –
A.    No.
Q.    You were thrown back because this vehicle apparently hit your knee.
A.    Yes, that’s right.
That evidence indicates that, on his version, the appellant was hit in the knee. There was no evidence led at trial to suggest the existence of Mr Atkinson’s scenario of “an indirect mechanism of injury” caused by a motor vehicle. In my view, the trial judge has not erred in not considering that suggested scenario, because it was simply not open on the evidence.
In my view, the trial judge has carefully analysed and had regard to all of the evidence. She had the distinct advantage of observing the important eyewitnesses give evidence. That advantage is especially significant in this type of case, where there are only two eyewitnesses, with no direct evidence to the contrary. For the reasons already mentioned, the trial judge was obviously unimpressed with the evidence of both of them. The inconsistencies pointed out in her reasons were significant, and it is understandable why they made such an impact on her decision. The trial judge also carefully analysed the medical evidence. She carefully considered whether it supported the accounts of the eyewitnesses. As I have indicated, there was no need to go into the suggested scenario postulated by Mr Atkinson, as that scenario was not supported by the evidence.
Conclusion
I would dismiss the appeal.