Shimokawa v Lewis

Case [2009] NSWCA 266

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Shimokawa v Lewis [2009] NSWCA 266

FILE NUMBER(S):
40412/08

HEARING DATE(S):
14 July 2009

JUDGMENT DATE:
11 September 2009

PARTIES:
Shizunori Shimokawa - Appellant
Rebecca Lewis - Respondent

JUDGMENT OF:
Beazley JA Giles JA Ipp JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 470/07

LOWER COURT JUDICIAL OFFICER:
Levy SC DCJ

LOWER COURT DATE OF DECISION:
14 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Lewis v Shimokawa [2008] NSWDC 244

COUNSEL:
K P Rewell SC & A J J Renshaw - Appellant
S Norton SC & P Khandhar - Respondent

SOLICITORS:
Sparke Helmore Lawyers - Appellant
Brydens, Liverpool - Respondent

CATCHWORDS:
NEGLIGENCE - motor vehicle accident - whether plaintiff in vehicle at time defendant collided with it - appellate review of trial judge's findings - various elements in challenge to fact-finding - in particular failure to note consistency of evidence of two unconnected groups of witnesses - detailed consideration of judge's reasons - appellate court must conduct real review - errors in process of fact-finding despite credibility-based findings - new trial ordered save for an issue not the subject of appeal.

LEGISLATION CITED:

CASES CITED:
Abalos v Australian Postal Commission (1990) 171 CLR 167;
Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452;
Briginshaw v Briginshaw (1938) 60 CLR 336;
Container Terminals Australia Ltd v Huseyin [2000] NSWCA 320;
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118;
Jones v Hyde (1989) 63 ALJR 63;
Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1;
Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; (2008) 249 ALR 663;
Pateman v Higgin (1957) 97 CLR 521;
Rebenta Pty Ltd v Wise [2009] NSWCA 212;
SS Hontestroom v SS Sagaporack (1927) AC 37;
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517;
Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343;
Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85.

TEXTS CITED:

DECISION:
(1)  Appeal allowed;  (2)  Set aside the verdict and judgment for the plaintiff for $1,444,851 and the order that the defendant pay the plaintiff’s costs;  (3)  Remit the proceedings to the District Court for a new trial on all issues except whether the appellant had failed to take reasonable care in his driving;  (4)  Costs of the first trial to be in the disposal of the judge conducting the new trial;  (5)  Respondent pay appellant’s costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA   40412/08
DC  470/07

BEAZLEY JA
GILES JA
IPP JA

Friday, 11 September 2009

SHIMOKAWA v LEWIS

Judgment

  1. BEAZLEY JA:  I agree with Giles JA.

  2. GILES JA:  On 21 November 2003 the conditions on…

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Details
AGLC
Shimokawa v Lewis [2009] NSWCA 266
Case
[2009] NSWCA 266
Decision Date

CaseChat Overview and Summary

The appeal in *Shimokawa v Lewis* concerned a motor vehicle accident where the plaintiff alleged she sustained injuries due to the defendant's negligent driving. The central dispute revolved around whether the plaintiff was in her vehicle at the time of the collision with the defendant. The trial judge found in favour of the plaintiff, accepting her account and rejecting the evidence of several defence witnesses who claimed she was standing by the side of the road. The appeal was heard by Beazley, Giles, and Ipp JJA of the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal included whether the trial judge's findings of fact, particularly regarding the plaintiff's presence in her vehicle and the severity of the impact, were appealably unsound. The appellant argued that the trial judge's analysis of the evidence was flawed, failing to adequately consider the consistency of evidence from unconnected groups of witnesses, the lack of motive for those witnesses to give false evidence, and the improbability of multiple witnesses being mistaken. The court was required to conduct a "real review" of the trial judge's reasons, considering the appellate constraints on disturbing findings based on credibility, but also recognising the appellate court's capacity for synthesis and perspective.

The Court of Appeal found that the trial judge's reasoning contained deficiencies in his fact-finding process. While acknowledging the trial judge's correct observation that a qualitative rather than quantitative analysis of evidence was required, the court highlighted that the judge failed to adequately address how multiple witnesses, particularly from unconnected groups, could all be mistaken or provide false evidence. This absence of consideration was deemed a serious deficiency. The appellate court emphasised that while trial judges have an advantage in assessing demeanour, this does not preclude an appeal court from disturbing findings if incontrovertible facts or uncontested testimony demonstrate error, even when seemingly based on credibility.

Consequently, the appeal was allowed. The verdict and judgment for the plaintiff were set aside, and the proceedings were remitted to the District Court for a new trial on all issues except for the finding that the appellant had failed to take reasonable care in his driving. The costs of the first trial were to be determined by the judge conducting the new trial, and the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff for $1,444,851 and the order that the defendant pay the plaintiff’s costs; (3) Remit the proceedings to the District Court for a new trial on all issues except whether the appellant had failed to take reasonable care in his driving; (4) Costs of the first trial to be in the disposal of the judge conducting the new trial; (5) Respondent pay appellant’s costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

His Honour expressed his ultimate conclusion -“Resolution of the differing versions of conflicting liability evidence141. I find that the first collision, namely, between the Plaintiff’s vehicle and the vehicle driven by Mr Josie McCaw involved trivial damage in which the Plaintiff occasioned no injury. I find that the second collision, namely between the Defendant’s vehicle and the Plaintiff’s vehicle was a severe or massive jolting impact which caused the Plaintiff’s vehicle to be forced into a further collision with the rear of Mr Josie McCaw’s vehicle. I find that the force of the second collision caused the Plaintiff to be thrown about in her seat so that her head struck the internal roof of her van. I find that in these circumstances the Plaintiff sustained injury as she described.142. I reject as baseless the allegation advanced on behalf of the Defendant that the Plaintiff was not in her vehicle at the time of the second collision. I reject as baseless and without truthful foundation, the evidence of Mr Josie McCaw, Mr Andrew McCaw and Mr Kevin Perkins wherein they assert that the Plaintiff was not in her vehicle but standing by the side of the road at the time of the second collision. I also reject as mistaken reconstruction the evidence of Mr Shimokawa and Mrs Shimokawa wherein they assert that the Plaintiff was outside of her vehicle when the second collision occurred.143. As a consequence of these findings I find that there must be a verdict for the Plaintiff on the issue of liability.”Injury to the respondent – overview of the appellant’s submissions The appellant acknowledged that the trial judge’s findings, so far as resting on the credibility of the witnesses, attracted the well-known appellate constraint considered in cases such as Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. He submitted that they were nonetheless appealably unsound. The challenge to his Honour’s findings had the elements –The evidence of the respondent was not analysed in the detail devoted to the analyses of the evidence of the Messrs McCaw and Mr Perkins (“the McCaw witnesses”) and of Mrs Shimokawa and the appellant (“the Shimokawa witnesses”) (together, “the appellant’s witnesses”), and had it been there were matters to which the trial judge did not refer reflecting upon the respondent’s credibility. The analyses of the evidence of the appellant’s witnesses were flawed in a number of respects, such that the trial judge’s reasons for rejecting their evidence did not stand up to scrutiny.The trial judge did not explain how his view of the demeanour of the various witnesses bore upon their credibility, and his reliance on demeanour was unwarranted.It was not sufficiently put to the appellant’s witnesses that the second collision occurred only two or three seconds after the first collision and while the respondent was seated in the Toyota van, whereby the trial judge did not have the opportunity to assess the manner and terms of their responses as part of assessing their credibility. The trial judge did not deal with the critical matter of absence of motive for the McCaw witnesses falsely to say that the respondent was not in the Toyota van at the time of the second collision.The trial judge did not deal with the further critical matter that, it not having been suggested that the McCaw witnesses and the Shimokawa witnesses colluded falsely to say that the respondent was not in the Toyota van at the time of the second collision, it was “glaringly improbable” that both groups of witnesses were mistaken in that respect.

Decision

Reasons for decision

The trial judge said at his [65] that the evaluation of the conflicting testimony involved a qualitative and not a quantitative analysis, correctly recognising that five witnesses against one did not carry the day. This fell short of asking how the five could all be incorrect, and in particular how the members of the two groups came to give what in his Honour’s view was incorrect, even false, evidence. Absence of consideration of this matter was in my view a serious deficiency in the trial judge’s fact finding.Injury to the respondent: conclusion on the challenge to the trial judge’s findings This appeal is by way of rehearing, and the Court must “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”: Fox v Percy at [25]; see also Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 at [37]; Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; (2008) 249 ALR 663 at [2], [31]-[32]. The appeal is not a completely fresh hearing, and there are necessarily “the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record” (Fox v Percy at [23]). So in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [2] Gleeson CJ said -“In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance.” Those limitations include the trial judge’s advantage concerning factual findings affected by demeanour, but are not limited to that advantage; conversely, as explained by Allsop P in Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85 at [3], an appellate court has some advantages over the trial judge, in evaluation of the evidence with counsel’s assistance and discussion and debate with counsel and between the members of the Court and the “capacity for appellate synthesis and perspective”. In Fox v Percy Gleeson CJ and Gummow and Kirby JJ said at [28] that -“ … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be or are stated to be, based on credibility findings.” (citations omitted)

Ratio Decidendi

Legal Principle Established

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