Shimokawa v Lewis - [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

BEAZLEY JA: I agree with Giles JA.
GILES JA: On 21 November 2003 the conditions on the M6 Freeway on the Mt Ousley road near Wollongong were wet and foggy. Late in the afternoon there occurred a multiple vehicle accident, or series of accidents, amongst south-bound vehicles.
In order to avoid a collision with another vehicle that had stopped immediately in front of him, Mr Josie McCaw drove his mother’s Holden Rodeo utility into the breakdown lane on the left side of the roadway and stopped. The respondent, Ms Rebecca Lewis, was driving her employer’s Toyota Hi Ace van behind the Holden. She swerved to the left and braked in order to avoid a collision, but she was not completely successful and the front of the Toyota van hit the tow bar of the Holden at low speed (“the first collision”). The damage was trivial. A Toyota HiAce bus towing a trailer driven by the appellant, Mr Shizunori Shimokawa, then collided with some force with the back of the Toyota van (“the second collision”). The damage to the Toyota van was quite extensive, including damage from being forced into the back of the Holden. A Mitsubishi Pajero ran into the back of the Toyota bus, and other vehicles skidded and collided in the vicinity.
The respondent brought proceedings against the appellant, alleging negligence in the driving of the Toyota bus and that she had sustained injuries in the second collision.
The trial judge, Levy DCJ, found that the appellant had failed to take reasonable care in his driving, in that he did not have proper regard to the road conditions ahead of him and adjust his speed to take them into account, and had to brake heavily and skidded into the rear of the Toyota van. There was no appeal in that respect.
His Honour was faced with unusual conflict concerning injury to the respondent in the second collision. On the respondent’s case, the second collision occurred within seconds of the first collision, she was seated in the Toyota van when it was struck from behind by the Toyota bus, and she was injured when the impact lifted her off the seat and she hit her head on the vehicle’s roof. On the appellant’s case, a matter of minutes elapsed between the collisions, and the respondent was not in the Toyota van when it was struck from behind but was standing at the roadside with Mr Josie McCaw and his two passengers, Mr Andrew McCaw and a friend Mr Kevin Perkins, from the Holden. At least in submissions to the trial judge, counsel for the appellant characterised the respondent’s claim as fraudulent, and contended that the disabilities of which she complained were pre-existing or, to the extent they were genuine, were the result of minor injury in the first collision.
The trial judge found that the respondent was in the Toyota van at the time of the second collision, and was injured, with consequent disabilities as she claimed. The appellant appealed against the findings.
His Honour assessed the respondent’s damages at $1,444,851, the principal components of which were non-economic loss ($265,000), future out-of-pocket expenses ($60,000), past wage loss ($107,500), future wage loss ($679,891), the associated past and future losses of superannuation ($11,825 and $74,788) and future domestic assistance ($208,467). The appellant appealed against the assessment in respect of each of these components.
Injury to the respondent: the trial judge’s reasons
The respondent was alone in the Toyota van. In the Holden were Mr Josie McCaw and his two passengers. The appellant’s Toyota bus also contained passengers, his wife Mrs Sharon Shimokawa and a friend Mr Stuart Nayler. Mrs Shimokawa was a front seat passenger, and Mr Nayler was asleep on the back seat in the lead-up to the second collision. All of these persons gave evidence. No-one else gave evidence in relation to the events at the time of the accident.
The trial judge described the competing versions -
“Plaintiff’s version
14. The Plaintiff described how, in rainy, cloudy and very patchy fog-bound conditions on a slippery road in peak hour traffic she drove through a patch of fog into a fog-free clearing where she saw that the vehicle in front of her had braked and swerved to the left. She described how she also followed the course of the vehicle in front but in doing so she caused her vehicle to slide to the left so that the front bumper bar on her vehicle came into slight collision with the towbar of the vehicle in front.
15. On realising that she had collided with the vehicle in front she had a perception that her vehicle was in the middle of the left southbound lane and she therefore anticipated that her vehicle was in a position where it may be struck by other southbound vehicles. She then described how, some 2 or 3 seconds after the first collision, having in the meantime tensed herself in expectation of an anticipated and imminent collision from behind, her vehicle was then struck from behind by the Defendant’s vehicle.
16. The Plaintiff described this second collision as being very forceful such that it lifted her off her seat so that she hit her head on the inside roof of the van. She said that her body was then shaking. This second collision had also forced the Plaintiff’s vehicle into a further collision with the stationary vehicle in front (“the third collision”).
17. She then described, in sequence, how she then looked for her cigarettes and then, after what she described as a couple of minutes, she got out of her vehicle. She described how the Defendant approached her and told her that he had been unable to stop. She described how, in the meantime, she saw and heard a number of further collisions that had occurred in the vicinity. She ultimately said she was aware of some thirty to thirty-five other vehicles that were involved in further collisions in the vicinity.
18. In particular, she recounted her recollection of how the three persons who had emerged from the vehicle in front of her approached her after she had alighted from her vehicle. She went on to describe how she had given these people some of her cigarettes following which they engaged in conversation. She described how, whilst she was shaking, one of these persons gave her his jumper whilst they were waiting for the police to arrive.
19. Counsel for the Defendant, Mr Renshaw, put to the Plaintiff that at the time the Defendant’s vehicle collided with the rear of her vehicle she was not in her vehicle, having previously alighted from it before it was struck by the Defendant’s vehicle. The Plaintiff denied that suggestion. She also denied the suggestion that she had not suffered any injury when the Defendant’s vehicle struck her vehicle.
Version of the Defendant and the Defendant’s witnesses
20. On behalf of the Defendant it was asserted that at the time of the second collision in which his vehicle struck the Plaintiff’s vehicle, the Plaintiff was not inside her vehicle, but was instead standing with others, on the side of the road near the front of her vehicle.
21. The Defendant’s version was supported by the evidence of his wife, Mrs Sharon Shimokawa, each of who gave evidence placing the Plaintiff outside her vehicle at the time of the second collision.
22. The Defendant’s contention that the Plaintiff was not in her vehicle at the time of the second collision was further supported by the evidence of the driver and the two passengers who were in the vehicle which the Plaintiff’s vehicle had struck from behind in the first collision. Mr Josie McCaw, the driver of that vehicle, his brother Mr Andrew McCaw, and Mr Kevin Perkins, another passenger, each gave evidence disputing the Plaintiff’s version. They each gave evidence to the effect that after the first collision and before the second collision the Plaintiff had alighted from her vehicle in order to inspect the damage from that collision. They alleged the Plaintiff had been engaged in conversation with them at the time the Defendant’s vehicle approached the scene and when the second collision occurred.”
His Honour said -
23. The respective versions of these two disparate bodies of evidence are polarised. Accordingly, it becomes necessary to evaluate the credibility of the testimony given by the Plaintiff and the witnesses called on behalf of the Defendant to consider these differing versions in order to reach a conclusion as to what in fact did occur.”
The trial judge undertook the evaluation over some 22 pages of his reasons.
His Honour first dealt with the evidence of the respondent. Referring to his observations of her, he said that he gained the impression from her demeanour “that she was sincere and careful in recounting her evidence”. He said that her evidence “was plausible and not internally inconsistent” and that “[h]er demeanour gave me no reason to doubt the credibility or content of her testimony”.
His Honour noted the submission that he must be “comfortably satisfied that the Defendant’s claim of fraud has been substantiated”, citing Briginshaw v Briginshaw (1938) 60 CLR 336. He referred again to the respondent’s “version of events”. The respondent was getting out of the Toyota van after the second collision when the three occupants of the Holden (whom she had watched getting out of it) came up to her. Mr Josie McCaw said, “Fuck, that second hit was massive”, and she replied “I know, I was in the van, I felt it, I know”. The occupants of the Holden then asked for cigarettes, and she gave them cigarettes, and contact details were exchanged. During this time the appellant approached her and said, “I couldn’t stop”.
His Honour set out part of the cross-examination of the respondent, saying that counsel for the appellant thereby “squarely put the fraud proposition to the plaintiff which she denied”. (It was not put as fraud, but counsel put the essence of the appellant’s case and obtained agreement to the proposition that there was “a very serious accusation” against the respondent.) His Honour said -
“61. There was nothing in the content of the Plaintiff’s evidence or in the manner of her denial of matters put to her in cross-examination that caused me to doubt her veracity on a face value examination of her evidence.”
The trial judge then turned to “an examination of the evidence that was contrary to the Plaintiff’s version of events”. He stated as a summary -
“63. Against the Plaintiff’s version of the foregoing events is the evidence of Mr Josie McCaw, who was the driver of the car that was struck by the Plaintiff, his brother Mr Andrew McCaw, a passenger in their vehicle, Mr Kevin Perkins, the Defendant Mr Shizunori Shimokawa, his wife Mrs Sharon Shimokawa and Mr Stuart Nayler, both of whom were passengers in the Defendant’s vehicle.
64. With the exception of Mr Nayler, who was asleep in the back seat of the Defendant’s vehicle in the lead-up to the second collision, the combined essence of the evidence of these persons is that the Plaintiff was seen to be standing outside her vehicle at the time of the second collision and therefore not inside her vehicle at the time of that second collision.
65. The evaluation of this conflicting testimony involves a qualitative and not a quantitative analysis. On hearing and analysing the liability evidence in conflict with the evidence of the Plaintiff I considered [sic] there to be good reasons for doubting the veracity of the evidence that was contrary to the Plaintiff’s version of events.”
His Honour then serially considered the evidence of Mr Josie McCaw, Mr Andrew McCaw, Mr Perkins, Mrs Shimokawa, Mr Nayler and Mr Shimokawa. I will return to the detail of his consideration of the evidence of these witnesses, and for the present set out the conclusions to which his Honour came with respect to each.
As to Mr Josie McCaw, his Honour concluded -
“82. Having heard and reviewed Mr Josie McCaw’s evidence as a whole I have formed the view that he was an unreliable witness in respect of recounting the key events with which I am concerned. I find that at the very least he has mistakenly reconstructed his memory in respect of some key events that surrounded the incident, if not worse. In forming this adverse view of his testimony I have taken into account the fact that he was young and relatively immature at the time of the collisions. The events which surrounded the formation of his memory were undoubtedly terrifying to him and he was shaken at the time. In my view these events have led to a distortion of his memory. I find that when he was approached by private investigators who, in his words, were harassing him and causing him trouble at his work, these events caused him to form a negative attitude to participating in the process of assisting those with an interest in doing so to arrive at the truth of the matter by investigation. I infer from such conduct that if it suited him to do so, he would display a similar attitude to giving evidence. I find I cannot rely on the evidence of Mr Josie McCaw as a result of the foregoing matters and I do not accept his evidence to the effect that the Plaintiff was not in her vehicle when it was struck from behind by the Defendant’s vehicle. I find that he did approach and converse with the Plaintiff but I find this occurred after the Defendant’s vehicle had already driven into the rear of the Plaintiff’s vehicle in the second collision.”
As to Mr Andrew McCaw, his Honour concluded -
“104. I find myself unable to rely on any aspect of the evidence of Mr Andrew McCaw where it conflicts with the evidence of the Plaintiff. There were aspects of the evidence of both Mr Josie McCaw and Mr Andrew McCaw which suggested to me that they had collaborated on the content of the evidence they intended to give and I find that they in fact did so. His preparedness to exaggerate and mislead an investigator, for whatever reason, causes me to heavily discount anything he said in his evidence as I infer from such behaviour that he would also be prepared to exaggerate his evidence and also mislead the court. In my view he was a witness prepared to say anything without regard to the truth of what he was saying. I do not accept his evidence to the effect that he had seen the Plaintiff alight from her vehicle before the second impact that had been caused by a collision with the Defendant’s vehicle.”
As to Mr Perkins, his Honour concluded -
“110. I accept Mr Perkin’s admission that over the years since the incident he, Mr Josie McCaw and Mr Andrew McCaw have discussed and laughed about the subject matter of the incident. The evidence of Mr Perkins to the effect that he and the McCaw brothers have discussed the matter of the collision over the years demonstrates the untruthfulness of the evidence of Mr Josie McCaw and Mr Andrew McCaw in which they sought to conceal the fact of such discussions concerning the details of the incident. Following on from this finding I infer that such discussions had the effect of reinforcing a conflated and incorrect belief by these three witnesses concerning the sequence of events that occurred on the day in question. Consequentially I find that they each gave incorrect evidence to the effect that the Plaintiff was outside her vehicle when it was struck from behind by the Defendant’s vehicle.”
As to Mrs Shimokawa, his Honour concluded -
“124. A relevant matter to consider when assessing the accuracy of Mrs Shimokawa’s evidence is that although the incident occurred over 4 years ago, the first time she was asked to try and recall the events was a little over a year ago. In my view the effluxion of time has rendered her memory to be inaccurate.
125. I find her evidence to the effect that she had no reason to read her statement about the matter since about a year ago to be unconvincing.
126. I find her denial that the impact from the second collision was massive to be unconvincing and inconsistent with her own apprehensive reaction to the impending collision which consisted of placing her legs up on the dashboard to avoid being hurt.
127. I find myself unable to rely on the evidence of Mrs Shimokawa insofar as she asserts the Plaintiff was not in her vehicle at the time of the second collision. I find her estimate of the Defendant’s speed to be unreliable. I infer that her evidence is dependent on hearsay and I find she has no true memory of the salient details of the events leading up to and surrounding the second collision. I find that in the lead-up to the collision she was immediately concerned to protect herself from injury by placing her legs upon the dashboard and in such circumstances I find it to be most unlikely that at the same time she was paying attention to the persons standing on the side of the road as she has claimed. I do not accept her evidence in which she places the Plaintiff outside of her vehicle at the time of the second collision. In my view she was more likely to be concerned with assisting her husband free himself from their vehicle because his driver’s side door had jammed rather than paying attention at that time to the whereabouts and position of the Plaintiff. I find that she has mistakenly reconstructed the events after a significant lapse of time such that I find myself unable to rely on her evidence as to the Plaintiff’s location at the time of the second collision.”

As to Mr Nayler, his Honour concluded -
“130. I do not accept Mr Nayler’s evidence as to the force of the impact in the second collision. I find that as Mr Nayler was asleep at the time, his evidence is non-contributory to the issue of whether or not the Plaintiff was in her vehicle at the time of the second collision.”
As to the appellant, his Honour concluded -
“Whilst it is possible that the Defendant saw a woman standing by the roadside before the second collision I do not accept the Defendant’s evidence that he saw the Plaintiff at the roadside before he collided with the rear of her vehicle. I have come to this conclusion because the Defendant had only a very limited opportunity to observe and take in the details of the scene just before the collision. I find that opportunity would only have been available to the Defendant over some 2 to 3 seconds at the most and I find during that time his focus of attention was on the suddenly alarming nature of the circumstances he was in rather than observing persons standing by the roadside to a degree of attention that enabled identification.
136. The Defendant gave imprecise evidence as to distances. He described how he saw the accident scene from about 200m away and he saw the Plaintiff’s van from less than 200m away, perhaps from 70, 80 or 100m. He described what I took to be his attempt at evasive action from about 30m away which I find to be the distance from which he saw people on the side of the road.
137. Although Mrs Shimokawa said she got out of the vehicle straight away, Mr Shimokawa described how Mrs Shimokawa had taken some 5 or 6 seconds to alight from the vehicle. I accept that it could have taken him at least 5 or 6 seconds to alight from his vehicle. I infer and find that in this time he worked to free the jammed driver’s door on his vehicle which I infer would have occupied his full attention rather than it being directed with any accuracy to taking stock of who was in the vicinity, including the Plaintiff. I find that Mr Shimokawa had an inadequate opportunity to identify the Plaintiff at the scene either during the short interval of time of his approach to the point of the second collision or between the time of the collision and the time by which he had freed and opened his jammed door to alight from his vehicle. I find that any identification of the Plaintiff by him at the scene was based on his observation of her after the second collision and after the Plaintiff had emerged from her vehicle after that second collision.
138. Unsurprisingly, given that the Defendant and Mrs Shimokawa were a married couple, the Defendant acknowledged that he and his wife had discussed the matter. His evidence was:
‘Q. So, you've been talking to your wife about this, have you? What she saw, what you saw.
A. WITNESS: Excuse me, I don't understand exactly. We are the married couple. When there we talk. "Are you all right?", or what we can do. We saw it and we seen it, we talk.’
139. He also acknowledged that when he had lunch with his wife after she had given her evidence he discussed the evidence with his wife before he gave his own evidence. Having regard to this evidence I find that the evidence the Defendant gave in Court was not based solely on his own recollection but contained conclusions as to what he thought had occurred instead of actual recollections. As I am unable, on the state of the evidence to tease out that part of his evidence that represents his own recollection and that part which represents the concluded view he arrived at following discussions with his wife, or indeed that part of his evidence which was based on matters he had inferred from viewing the photographs he had taken on the day of the incident.
140. Consequently, I reject the Defendant’s evidence in which he purports to identify the Plaintiff standing by the side of the road before the occurrence of the second collision.”
His Honour expressed his ultimate conclusion -
“Resolution of the differing versions of conflicting liability evidence
141. 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.
In relation to these last matters in particular, it was submitted that the trial judge -
“ … erred in searching for inconsistencies in detail in the evidence of the five witnesses adverse to the Respondent, whilst failing to:
(i)Attach any, or sufficient, weight to the common element in their evidence, namely that the Respondent was seen to be outside her vehicle at the time the Appellant’s vehicle collided with it;
(ii)Explain, or attempt to explain, that remarkable coincidence in the evidence of each of them, and in particular, between the two groups.”
I will deal in turn with each of the elements in the challenge to the findings, and then explain by conclusion on the challenge.
The element of the analysis of the respondent’s evidence
The appellant identified a number of matters which he submitted might have affected the trial judge’s favourable view of the respondent’s credibility. His point was not just that they did tell against the respondent’s credibility. It was that, because they were not taken into account in his Honour’s analysis, the process of fact-finding was flawed. It was submitted that the trial judge failed to take the same detailed approach to the respondent’s credibility as he took to matters he considered told against the credibility of the appellant’s witnesses, so that the process of fact-finding was skewed. Thus it is relevant to know whether the trial judge was invited in submissions to take the matters into account.
The first matter was said to be that, when the respondent was asked what speed her vehicle was doing “at impact” when it “slid into” the Holden, she replied about 40 to 45 kilometres per hour; she was asked about the speed when she “actually hit the tow bar”, and said that she could not say but “it wasn’t that fast”. The appellant submitted that the initial unresponsive answer went to the respondent’s credibility, although acknowledging that “on its own it wouldn’t be a major point in most cases”. In my opinion, it was a not unusual misunderstanding of a rather ambiguous question, and not a point in this case. It was not submitted to the trial judge that it was material to the respondent’s credibility.
The second matter was said to be that the respondent was then asked, “Did you ever see the damage to your vehicle”, and answered in the negative. The appellant submitted that this was “an extremely unlikely answer that went without comment”, meaning without comment by the trial judge. The respondent was not cross-examined to suggest that it was an unlikely answer. On her evidence it was not; the damage the subject of the question was damage in the first collision, and on her case the second collision occurred before she got out of the Toyota van and of course she did not see any damage from the first collision. This matter is quite misconceived. It was not put to the trial judge.
The third matter was said to be unusual behaviour of the respondent in the two or three seconds after the first collision. The unusual behaviour, according to the submission, was that according to her evidence the respondent “held onto the steering wheel and tensed and actually prepared herself for the next – I just knew it was coming because I was in the middle of the left hand lane”, and “hung onto the steering wheel and … held myself tight. I knew that there was going to be another hit … “. This was said to be unusual behaviour because the respondent also said that, before the second collision, she did not “see or hear anything in respect of traffic behind [her]”, because the two or three seconds which she said elapsed would not have given her time to prepare for a second impact. It was also said that the respondent was not in fact in the middle of the left hand lane but, from photographs taken by the appellant, close to the white line dividing it and the lane to her right.
None of this was cross-examined upon. In the conditions at the time, it was not unusual that the respondent should have anticipated another vehicle doing what her vehicle had done and running into the back of the Toyota van. It was not necessary for the anticipation that something be seen or heard in respect of traffic behind the respondent, and immediate anticipation was quite understandable. Whether the Toyota van was in the middle of the lane or to the right within it was in the circumstances quibbling. It was not submitted to the trial judge that the respondent’s behaviour was unusual, that her evidence in this respect was worthy of comment, or that it affected her credibility. There is nothing in this matter.
The fourth matter was said to be that the respondent estimated the time between the two collisions before she was asked to do so. The point, it seems, was that the time was critical, and that in some manner the respondent’s anticipation on the critical time weighed against her credibility.
The evidence was given when the respondent was asked to go “bit by bit” through what happened. The Toyota van had hit the Holden. She was asked what she then did. She said that she held onto the steering wheel and prepared herself for another impact, as just described, and then gave the evidence -
“Q. This might be difficult for you, and tell me if you can’t do it, but are you are you able to say about how long --
A. Two seconds --
Q. Please wait until I finish the question.
A. Sorry.
Q. About how long you were sitting there after the first impact before another impact occurred.
A. About 2 or 3 seconds.”
It would have been plain to the respondent what “About how long … “ was leading to. She answered before the question was completed, but that is not uncommon in ordinary discourse or in the giving of evidence. Again, it was not submitted to the trial judge that there was anything untoward in this passage of evidence, or that it reflected adversely on the respondent’s credit. There is nothing in this matter either.
The fifth matter was said to be curious behaviour of the respondent whilst still seated in the Toyota van after the second collision. The respondent gave evidence that she did not get out of the Toyota van straight away, that she “was actually looking for my cigarettes because … “ (the answer was not completed), and -
“Q. How long was it before you got out?
A. It could have been a couple of minutes.
Q. During that time did you hear or see any more impacts?
A. Yes.
Q. What did you hear or see of them?
A. Right next to me there was another ute and he rammed in. Another car hit the ute and actually flipped. It was rolling past us. So, there was accidents absolutely everywhere.
Q. Are you able to say, just roughly speaking, the number of impacts you heard going on around you after the first two that you were involved in?
A. Yeah, I could say heard another three, four, five.”
The appellant submitted that this was unusual behaviour because, given the other impacts including the rolling car, it would be expected that the respondent would have made haste to get out of the Toyota van and go to a position of safety off the road rather than look for cigarettes.
The length of time was approximate, and the cross-examination did not take up with the respondent whether she was looking for cigarettes for the whole of the time (which is unlikely) and why she did not immediately get out of the Toyota van. On her evidence, the respondent had been severely shaken in the second collision, and immediate vacation of the Toyota van would not necessarily be expected. Further, the other impacts, and apprehension of injury from other vehicles if outside the Toyota van, even in the process of going to safety, may well have operated on the respondent’s mind. The basis was not laid for a submission that there was curious behaviour in this respect, and it was not submitted to the trial judge that there was the unusual behaviour. Again, there is nothing in this matter.
The sixth matter was said to be that the respondent denied that she suffered a wide range of symptoms during the calendar year before the accident, despite those symptoms being listed by her in a document she completed on 9 April 2002. A proper understanding of the submission calls for rather detailed explanation.
The respondent experienced back pain when lifting a 20 kilogram bag of rags at work in July 2001. She claimed workers compensation and received treatment, but had no time off work. She completed a questionnaire dated 9 April 2002, which the trial judge said “appears to have been initiated as part of a workers compensation questionnaire”. The questionnaire was headed “The Quebec Pain Disability Scale”, listed a number of activities, and asked that a figure be circled for the degree of difficulty experienced on a scale of 1 to 5.
The cross-examination of the respondent began -
“Q. Can you remember how you were in the year 2002?
A. Fine.
Q. I’m sorry?
A. I was fine.
Q. You had no problems at all.
A. Not major problems, no. No, nothing.
Q. Did you have any physical problems?
A. Not until when I injured my back which was – I don’t know what that year was exactly.
Q. It was 2003.
A. Okay. Well, no --
Q. This is the year before the accident.
A. No.”
Counsel then asked the respondent whether she had “any difficulty” in a series of activities, being most of the activities in the questionnaire. As to each the respondent answered in the negative. Twice in the course of this the question was put referring to difficulty “in 2002”.
In fact, the questionnaire had been completed to indicate that as to some of the activities there was “no problem”, but as to five of the activities put to the respondent it was “a little difficult”, as to five of the activities put to the respondent it was “somewhat difficult”, as to three of the activities put to the respondent it was “very difficult”, and as to one of the activities put to the appellant it was “almost impossible”.
Counsel put to the respondent that her answers in the negative were false, which she denied. The cross-examination continued -
“Q. Here is your Quebec Pain Disability Scale filled out by you on the 9th of the fourth, 02.
HIS HONOUR:
Q. Do you know what a Quebec Disability Scale is, Ms Lewis?
A. No.
RENSHAW: Q. it’s a series of questions that you were asked, and if you go through them, or the questions I asked you, the answers to every question that I asked you in each case is either “some difficulty” or “mild difficulty” or “extreme difficulty” or “almost impossible”.
A. I don’t understand where this is from.
Q. That comes from the Liverpool --
A. Yeah, that’s when I hurt my back.
Q. Yes, this is in 2002 and – but hurt your back in 2002, did you?
A. I don’t exactly know what year. That’s what I was saying before.
Q. I asked you specifically about 2002 and you said you had none of those problems.
A. I said I hurt my back but I don’t know what year it was exactly when I strained my back. I can’t remember exactly what year.”
There was then some debate between counsel and the trial judge concerning whether the respondent been confused as to the time frame of the questions.
The cross-examination on the subject relevantly concluded -
“Q. That document in front of you, you will agree, I take it, reflects your state of incapacity as of the date at the top right-hand corner [being 9 April 2002]?
A. Yeah, yeah. I don’t recall that date, I actually thought it was earlier. That’s my problem.
…
Q. That being the case, would you not agree that it reflects a considerable degree of disability as of that date?
A. Somewhat, but not like now.”
It was not specifically submitted to the trial judge that the respondent’s negative answers were contrary to the questionnaire and adverse to her credibility, but the questionnaire was relied on for pre-existing disability and it should be accepted that credibility implications were appreciated.
Any discrepancy in the respondent’s evidence in this respect was not dealt with by his Honour as a matter going to her credibility. Nor did his Honour directly deal with whether there was a discrepancy in the respondent’s evidence in his reasons concerning assessment of damages. In that connection, he referred to the cross-examination on the answers in the questionnaire, describing the relevant answers but not specifically the negative answers in cross-examination to the questions concerning activities in the questionnaire, and said -
156. No evidence was called to challenge or contradict the Plaintiff’s evidence that in the months before the 21 November 2003 collision she had been without back problems from the 2002 work related lifting injury. The answers to the questionnaire comprising Exhibit “1” do not contradict the Plaintiff’s evidence in this regard and it is not improbable that the Plaintiff’s back injury sustained on 26 July 2001 would have at some stage recovered in the nineteen month period since the Plaintiff had completed that questionnaire.”

The submission was available to the appellant at trial that the respondent had in cross-examination given answers inconsistent with what she had asserted in the questionnaire. Possibly it could have been submitted that she had done so in order to ascribe her present condition to the accident rather than any continuing effect of the July 2001 back injury, although this had not been put to her.
But on the evidence I have set out the respondent’s negative answers were well open to be understood as the product of confusion, she not remembering the questionnaire and thinking that the questions were asking about difficulties prior to the back injury at work. She did not remember when that was, but was referring to the injury at work when she said that she did not have any physical problems “until when I injured my back – I don’t know what that year was exactly”. Counsel misunderstood and, apparently thinking she was referring to injury in the accident in November 2003, told her, “It was 2003”. That set the scene for answers by the respondent under a misapprehension. On a reading of the transcript, in my opinion that is the preferable understanding of what occurred. Accordingly, to the extent that the submission was available, I do not think that this matter weighed heavily as a matter adverse to the respondent’s credibility. It can, however, be said that it was a matter going to her credibility which deserved attention as such in the trial judge’s reasons, even if the trial judge concluded that it did not weigh heavily against her credibility.
The seventh matter was said to be the respondent’s “inability to recall undergoing 8 to 9 months of massage, with no benefit, prior to the subject accident”.
Doctor Low attended the respondent as a general practitioner. After the July 2001 injury at work the respondent’s treatment included referral for physiotherapy. Dr Low’s notes of a consultation on 20 March 2002 included “still recurrent pains – suggest referral to another physiotherapist – for proper treatment instead of only massaging”. He signed a referral to a physiotherapy practice dated 20 March 2002 containing, “Diagnosis: thoracic spine/paravertebral strain 8-9 months of massage: no relief”.
The respondent was asked in cross-examination about seeing a physiotherapist, Mr Middleton, and -
“Q. And that you had eight to nine months of massage with no relief.
A. I don’t remember having massage before the chiropractic --
...
Q. I will show you this document, which is apparently signed by Dr Low, and you can read it yourself, and perhaps that will help you to remember. I think you can see clearly in that document, eight to nine months of massage, no relief.
A. Yeah, I do, but I don’t recall that.
Q. Is it possibly correct?
A. No, I didn’t have massage for eight to nine months, but -- [the answer was not completed]
Q. It certainly records eight to nine months of something.
A. Yeah, says “of massage” it does. It says “of massage”.
Q. But you say it may be not massage but something else; or eight to nine months of nothing but with no relief?
A. I don’t remember eight to nine months of anything.
Q. So he what he writes is, to you, a complete mystery, is it?
A. It is, yes. That’s what I’m saying. I don’t recall that.”
The trial judge said in his reasons concerning assessment of damages -
“157. Exhibit “2” is a referral note dated 20 March 2002 from Mr Middleton, a physiotherapist consulted by the Plaintiff on 20 March 2002. The note records a history of thoracic spine paravertebral muscle strain against a history of 8 or 9 months of massage without relief. Whilst the Plaintiff acknowledged the correctness of that history, again, there is no suggestion in the records of the Plaintiff’s treating doctors or in evidence from the Plaintiff to suggest that this issue was still current at the time of the collision in question.”
This was not entirely accurate. The referral was from Dr Low to a practice of which Mr Middleton was part. The respondent did not “acknowledge the correctness of that history”.
The dangers in relying on a doctor’s notes of a history are well known, see the reasons for approaching the notes with caution discussed in Container Terminals Australia Ltd v Huseyin [2000] NSWCA 320 at [8], and are equally applicable to the referral. Other than from the referral itself, there was no evidence that the respondent had had massage for 8 to 9 months. The massaging to which Dr Low’s notes and referral referred may have been informal treatment or self-treatment, or the respondent may have had professional massaging from time to time, but this was not explored. What the respondent did not recall was 8 to 9 months of massaging in context professional massaging, but it was not put to her that she had had massaging for 8 to 9 months. Before failure to recall massaging for 8 to 9 months could have any significance, it had to be established that there was massaging for 8 to 9 months to be recalled.
No doubt this was the reason why it was not submitted to the trial judge that this was a matter adverse to the respondent’s credibility. It can hardly be submitted on appeal that the trial judge should have taken into account, in relation to the respondent’s credibility, a matter of at best dubious substance which he was not asked to take into account. Possibly it can be said that on a detailed approach akin to that taken to the evidence of the appellant’s witnesses, the trial judge might have given some attention to the matter.
The eighth matter was said to be the respondent’s “inability to recall suffering right shoulder pain for six months in 1998”.
The notes of Dr Low, or perhaps another general practitioner, for 23 November 1998 recorded -
“Sore right shoulder – about 6 months. No trauma or injury.
O/E        Right trapezius strain.
For:        Heat
               Feldene”
The relevant cross-examination was -
“Q. Had you ever had problems with your right shoulder before this accident?
A. Not really, no. No.
Q. What do you mean by not really?
A. No. I’ve never had any injuries to my shoulder.
Q. I’m not asking you whether you had any injuries, but whether you had any problem with your right shoulder.
A. No.
Q. See Dr Low, his notes of 23 November 1998 has recorded, ‘Sore right shoulder, about six months, no trauma or injury’.
A. No. I didn’t go to him for a sore shoulder.
Q. And you were – you didn’t go to see him?
A. Not for a sore shoulder, no.
Q. So you’re saying these notes are incorrect?
A. Yes. I didn’t go to him for a sore shoulder. I went to him for a back strain.
RENSHAW: Would your Honour excuse me for a moment. I was --
WITNESS: What happened is it probably went up to my shoulder, that’s the only thing I can think of.
RENSHAW: Would your Honour excuse me for a moment, I was relying on the --
HIS HONOUR: Yes.
RENSHAW. I will show my learned friend what I got out of the – these are from packet 3 too, I imagine.
Q. I put it to you that you went and saw him on 23 November 1998 with a history of right shoulder pain for approximately six months.
A. No, I don’t recall that. I don’t recall that.
Q. It’s something that would be very significant, would it not, if it had occurred?
A. That’s what I’m saying. I don’t recall having a shoulder injury for six months.”
The matter was not taken further. It was not submitted to the trial judge that the respondent’s failure to recall a shoulder injury, or a sore shoulder, for six months was dissembling or otherwise weighed against her credibility. Failure to remember back to 1998 is understandable, although it may be (from the respondent saying that she went to Dr Low for back strain) that she had fixed in her mind the July 2001 injury. In the state in which the evidence was left, there would have been minimal significance in this matter as going to credibility.
The element of the analyses of the evidence of the appellant’s witnesses
I take each of the appellant’s witnesses in turn. In broad terms, the appellant submitted that the reasons or many of the reasons given by the trial judge for declining to accept their reliability or veracity did not properly reflect upon their credibility. In the manner the appellant put his submissions, it is necessary to go to the reasons at some length and consider their bearing upon credibility.
(a) Mr Josie McCaw
Mr Josie McCaw was eighteen at the time of the accident and 22 at the time he gave evidence. He gave evidence that after the first collision the respondent got out and they had a look at the damage, they spoke “only a few minutes if that”, and -
“Q. So how long after she collided with you did the other car hit the back of her car?
A. Probably a couple of minutes, I suppose. We had time to talk about it, have a look and say ‘Yeah, no dramas’, and then away it went.”
The trial judge gave a number of reasons for declining to accept Mr Josie McCaw’s veracity.
First, he considered it “revealing” that Mr Josie McCaw said that when they were looking at the damage he could not remember where the respondent was standing in respect to himself, but later gave the evidence -
“Q. When the other vehicle hit the back of her vehicle where was she standing, do you remember?
A. No, she would have been around us.”
The trial judge appears to have thought that in the later evidence Mr Josie McCaw “made an assumption concerning where she had been standing at the time to which she was referring”; it is not clear whether the revelation was one of inconsistency in evidence or one of preparedness to assume.
There is an initial difficulty in that objection was taken to the answer “she would have been”, and counsel for the appellant said, “I don’t press it your Honour”, so that the answer was not in evidence. Apart from that, I do not think there was an assumption. There was imprecision as to where the respondent was standing at the time of the second collision, but that was not necessarily where people stood when looking at the damage: nor did it negate Mr Josie McCaw’s evidence that the respondent had got out of the Toyota van, the damage had been inspected, and some time had passed before the second collision. Later in his cross-examination Mr Josie McCaw said that the three occupants of the Holden and the respondent were together “on the left-hand side near the guard rail”, and that the three jumped over the guard rail when Mr Perkins said, “Watch out, jump” and the respondent “stood back to the guard rail”. It was not put to him that this was inconsistent with earlier inability to recall where the respondent had been standing, and it was consistent with the non-evidence that “she would have been” around us. I have difficulty in seeing any revelation material to Mr Josie McCaw’s reliability or veracity.
Secondly, the trial judge said that he “gained the impression” that the alarming circumstances of the multiple series of accidents had been “starkly imprinted on [Mr Josie McCaw’s] emotions”, which “raised the possibility that his recollections had been coloured and distorted by the terrifying events that had occurred around him.” It is difficult, with respect, to see how there could have been colouring or distortion to the extent of causing Mr Josie McCaw erroneously to recall the sequence of he and the respondent getting out of their vehicles after the first collision and inspecting the damage, followed by a warning from Mr Perkins and the second collision, it is at least as likely that the stark imprinting was of the account he gave in his evidence.
Thirdly, the trial judge said that Mr Josie McCaw’s evidence contained “some significant internal inconsistencies”, later said to be “a fundamental internal inconsistency”. I summarise my understanding of his Honour’s point. Mr Josie McCaw gave evidence of telephoning his mother after the first collision, and of holding the phone up so she could hear the sound of cars crashing in the series of accidents. The trial judge appears to have understood from his evidence that, because the telephone call was made after the first collision and was still continuing at the time of the second collision, Mr Josie McCaw had not approached the Toyota van and inspected the damage until after the second collision had occurred.
I do not think that there was inconsistency, because on the evidence of Mr Josie McCaw the telephone call could have been made after the inspection of the damage but before the second collision. (It was also open to the understanding that he made it after the second collision: twice in the evidence to which the trial judge referred Mr Josie McCaw clearly placed making the phone call after jumping over the guard rail, although at another point he said that “after the first impact I had time to call my mum and then after the second impact … I held the phone up and Mum could still hear the cars crashing”.)
It may be observed that the trial judge’s apparent acceptance that the phone call was made between the first collision and the second collision is difficult to reconcile with his acceptance of the respondent’s evidence that there were only seconds between the two collisions. There would not have been time for Mr Josie McCaw to make the phone call. At most there was obscurity in the evidence; I do not agree that there was a fundamental internal inconsistency.
Fourthly, the trial judge then said -
“71. Mr Josie McCaw acknowledged that his memory of the incident had faded over time but he claimed he was able to still remember a lot of key points about it. I find that this is what has in fact occurred. He has recalled some key points but I find that in the process he has conflated his recollection of key events such as the timing of the second collision, including the timing of when he in fact spoke to the Plaintiff. I find that his recollection of the sequence of these events was wrong.”
I have difficulty with this paragraph. Undoubtedly there can be conflation of recollection. Recollection of inspection of minor damage (“Yeah, no dramas”) and then a major collision (“Fuck, that was a massive impact”) is an unlikely conflation. Speaking to the respondent after the second collision would not have been an inspection of minor damage. Whether there was conflation depends on other matters: this paragraph was conclusory, and needed independent support. It was probably a conclusion from the preceding matter of the telephone call. If so, the basis for conflation seen by the trial judge was in my view unsound.
Fifthly, the trial judge then observed that he found “extraordinary” and did not accept as truthful Mr Josie McCaw’s evidence that he had last read over statements concerning the accident towards the beginning of 2008. This was not elaborated.
The statements had been prepared by insurance investigators, as the trial judge elsewhere observed generating some irritation on Mr Josie McCaw’s part, and provided by them to Mr Josie McCaw. He did not sign them or send back. He said he “got sick of the phone calls and all the rest of it”. The trial judge considered that this in itself reflected on Mr Josie McCaw’s veracity, see later, but his discontent with his dealings with the insurance investigators readily explained why he put the statements aside and did not recently read them. It was not put to him in cross-examination that there was anything extraordinary in his doing so, or that he was not telling the truth in his evidence of when he had last read them. In this respect, I again have difficulty with what the trial judge said.
Sixthly, the trial judge then contrasted, apparently considering that there was inconsistency, Mr Josie McCaw’s evidence of discussion of the accident with the other McCaw witneses. He set out one passage of evidence in which Mr Josie McCaw said that over the last few years “[w]e haven’t talked about the accident, really”, and that he talked to his brother about the accident after it happened “but we never sat down and talked about the accident as such, no”. He set out another passage in which the contrast appeared to be that Mr Josie McCaw said that “we talked about it” in 2003, meaning he and his brother and perhaps (although it was unclear) Mr Perkins.
The inconsistency is not particularly clear. However, the trial judge returned to discussion concerning the accident between Mr Josie McCaw and his brother, and when considering the evidence of Mr Perkins found from that evidence that there had been discussion over the years. It was open to the trial judge so to find, and (as he appears to have done) to have considered that Mr Josie McCaw was not being frank in that respect. I do not understand the appellant to have contended that his Honour’s view that the McCaw witnesses had discussed the accident should be rejected.
Seventhly, the trial judge then said -
“75. I find that Mr Josie McCaw’s evidence concerning the interval of time between the first and the second collision was unreliable as is confirmed in the following excerpt from his evidence which was in contrast to his earlier evidence that the interval between the collisions was ‘probably a couple of minutes’:
‘Q. Very difficult to gauge time, isn't it, when there's a lot going on? Have you found that?
A. Yeah, in that sense, yes.
Q. So, 2 minutes is nothing more than an estimate, is it?
A. No, that's right’.”
“Probably a couple of minutes” and an “estimate” of two minutes are both imprecise, but they scarcely differ and are equally reliable or unreliable. Appreciation of estimation does not mean unreliability, in giving evidence, and the important matter was not precision in the estimation of the time but that, according to Mr Josie McCaw, there was an interval of time between the first collision and the second collision during which the respondent was out of the Toyota van. This does not seem to be a matter telling against reliability or veracity in that respect.
Eighthly, the trial judge then said -
“76. It seems curious that other aspects of his memory had been affected by the passing of time yet oddly, he claimed to have a clear memory of conversing with the Plaintiff, his brother and Mr Perkins on the left side of the vehicles near the guard rail by the roadside as is evident in the following excerpt:
‘Q. Where did this conversation, do you say, take place?
A. On the left-hand side near the guard rail.
Q. Were all three of you there for it plus Ms Lewis?
A. Yes.
Q. You have a clear memory of that, do you?
A. Now of that part, yes’.”
In the immediately following evidence Mr Josie McCaw agreed that memories could be “infected or affected by things other people tell them”, but maintained that he had a clear memory “on certain points”. That is a common experience, not necessarily an oddity. His Honour was entitled to question an asserted clear memory of a particular matter despite the passing of time but, while a matter to be taken into account, it was not telling in relation to Mr Josie McCaw’s veracity.
Ninthly, the trial judge returned to the question of discussion concerning the accident between Mr Josie McCaw and his brother. His Honour said that a comparison of the evidence of the Messrs McCaw and Mr Perkins “on this issue of potential cross-referencing and discussion of their recollection caused me to doubt that the recollection recounted by Mr Josie McCaw was in fact his own recollection”.
This was not explained in greater detail at this point, although as I have said his Honour was entitled to find that there had been discussion of the accident over the years.
But it did not follow that Mr Josie McCaw’s recollection was not his own recollection, and there were differences between the accounts given by the McCaw witnesses although with the central consistency of the respondent being out of the van at the time of the second collision.
Nor did it follow that, if Mr Josie McCaw’s recollection was not his own but was the recollection of Mr Andrew McCaw or of Mr Perkins, that person’s recollection was incorrect. The reliability of even a combined recollection had to be independently assessed, and if there was a combined recollection it had to be asked why the recollection would have been so seriously faulty that the McCaw witnesses wrongly had the respondent out of the Toyota van at the time of the second collision. The trial judge appears to have moved directly from recollection affected by discussion between the witnesses to unreliable, indeed untruthful, recollection. That is not a step readily to be taken.

Tenthly, the trial judge finally said that he was caused to doubt the credibility (at another point the truthfulness) of Mr Josie McCaw’s evidence because he had not taken seriously his “obligation to provide a truthful statement of relevant events” when approached by the insurance investigators, but had been “prepared to say anything to avoid being pressed for further details”. This was described as preparedness to handle the truth carelessly if it suited him, and the trial judge also said that he thought it significant that Mr Josie McCaw refused to co-operate by signing and sending back an insurance investigator’s statement.
There was a basis for the trial judge’s concerns. Mr Josie McCaw considered that he was being “hassled”, it seems with some justification although the perception of hassling may have stemmed from an initial unco-operative attitude on his part. He agreed that he did not take “totally seriously” answering the insurance investigator’s questions. Counsel for the appellant on appeal accepted that Mr Josie McCaw (and Mr Andrew McCaw) were “careless with the truth” when speaking with the insurance investigators.
This was a matter which the trial judge was entitled to take into account, although it was necessary also to bear in mind first, that the carelessness did not depart from the essential fact that the respondent was not in the Toyota van at the time of the second collision; and secondly, that Mr Josie McCaw (and Mr Andrew McCaw) were not being hassled by insurance investigators at the time they were giving evidence, but had sworn to tell the truth in the solemnity of court proceedings. Carelessness with the truth out of court under perceived hassling does not necessarily translate to carelessness with the truth when giving evidence under oath. Untruthfullness in court must be determined on much wider consideration of the evidence. The trial judge appears to have given considerable weight to the prior carelessness with the truth, and in my opinion more than it independently warranted.
I have earlier set out the trial judge’s summary of his conclusions on the evidence of Mr Josie McCaw. The conclusions were expressed in terms of unreliability, but in the reasons his Honour went further and did not accept Mr Josie McCaw’s truthfulness. While some of the reasons for finding Mr Josie McCaw an unreliable witness were open to the trial judge, in my opinion others were unsound.
(b) Mr Andrew McCaw
Mr Andrew McCaw was aged sixteen at the time of the accident, and was aged 21 at the time of the trial. At the time of the trial he was a serving soldier in the Australian Army.
The trial judge said that his evidence was “interspersed with vernacular expressions which I consider to have been proffered, for whatever reason, in an attitude and manner of bravado and self-aggrandisement”. A reading of the evidence justifies the statement of fact. The conclusion as to Mr Andrew McCaw’s attitude and manner was open.
The trial judge continued, “This caused me to have significant reservations about the truthfulness of his evidence”. There is some difficulty with this further step, since bravado and self-aggrandisement does not necessarily mean untruthfulness. This is a form of demeanour, and while demeanour is a factor in assessing credibility on many occasions judges “have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses” (Fox v Percy at [30] per Gleeson CJ and Gummow and Kirby JJ).
The trial judge later referred to specific instances of attitude and manner. His Honour said that “[f]or a constellation of reasons I find myself unable to accept Mr Andrew McCaw as a reliable witness”. He gave nine reasons.
First, the trial judge said that Mr Andrew McCaw had “confused if not exaggerated the time sequences for the occurrence of relevant events”. He explained this in reasons which I think must be set out at length -
“87. ... On one version of his evidence he had the Defendant standing at the scene laughing and giggling along with his brother Mr Josie McCaw at a time when the Defendant could not possibly have been at the scene at the time to which he was referring, as the following excerpt from his evidence, particularly his very first answer to Mr Lidden SC in cross-examination, shows:
RENSHAW
Q. How long after the car that collided with the back of your vehicle did the driver get out of that vehicle?
A. Which vehicle? The--
Q. The one that came into the rear, that collided--
A. The one that hit us up the bum?
Q. Yeah.
A. Pretty much straightaway. Got out straightaway. She was saying, ‘No, it's no worries, don't worry about it’, because she's insured. We were all sweet, so we were all having a talk and they were having a laugh and giggle, doing what they done, and I was just at the side of the road going, ‘This is bad’, just all the fog. Bit upset because I didn't get to see my girlfriend.
RENSHAW: I have nothing further, your Honour.
HIS HONOUR: Yes, Mr Lidden.
<CROSS-EXAMINATION BY MR LIDDEN
Q. Who was laughing and giggling, Mr McCaw?
A. The lady, my brother, the Asian fellow. Me and my mate were just standing to the side having a smoke. They were having a smoke, but me and my mate just secluded ourselves.
Q. Could you see what the laughing and giggling was going on for?
A. They were just all talking, having a laugh about it. Saying how lucky they were and that. I don't know, I wasn't really there. I was over to the side.”
88. I take Mr Andrew McCaw’s reference to ‘the Asian fellow’ to be a reference to Mr Shimokawa, the Defendant in these proceedings as there was no evidence of any other person of Asian appearance present at the scene. In my view Mr Andrew McCaw’s evidence as cited above shows he has confused the facts. If he got out of his vehicle after the first collision ‘pretty much straight away’ which I infer to mean almost immediately, then it would not have been possible for him to have them ‘all having a talk and … having a laugh and a giggle’ including with the Defendant when, I infer from his own description, at that time the Defendant’s vehicle had not yet struck the Plaintiff’s vehicle and the Defendant could not have been at the accident scene at that time. I therefore find this aspect of his evidence as lacking in credibility.”
The trial judge took from the passage of evidence that the getting out of the Toyota van and the having a laugh and a giggle were sequential events, without the intervention of the second collision. However, the passage had to be read with the immediately preceding evidence given by Mr Andrew McCaw -
“A. Yeah we jumped in the car to head down to see one of my girlfriends. We got onto the freeway. It was pretty foggy, so we were doing about 80, and then it got really foggy, so my brother slowed right down, and we were in the left-hand lane, going nice and slow, about halfway down the freeway. And then all we seen was just, like, a small truck, just pretty much stopped, so my brother just stopped. Somehow he got into the broken down lane and stopped there, and the lady tried to follow us and tapped us up the bum. So we all got out, she got out, and we were just checking the damage. Having – we were having a cigarette together. and about 5 minutes – would have been about 5 minutes, I was just nearly finished my cigarette – and I just seen this van just sliding down the road. So I’ve yelled out ‘Jump’, everyone’s jumped, pretty much, all over the – you know the side rail, we all jumped over the side rail.
The van hit. There was an Asian driver. He got out, started taking photos and all that. We all started talking, having a bit of a laugh, and just kept hearing bang, bang, bang. Just big smash. And after that we waited for the coppers to come. The cops come, they said we could leave. We left, and that was it. We went back home.”
It was also relevant that Mr Andrew McCaw later said unequivocally that the respondent got out of the Toyota van after the first collision, not after the second collision, and affirmed the five minutes as “easy three to five minutes” because he had a durry.
Reading his evidence as a whole, and given Mr Andrew McCaw’s penchant for rambling unresponsively in his evidence, I have considerable difficulty in agreeing with the conclusion which the trial judge drew from the reference in the passage he set out to the Asian fellow being part of the laughing and giggling. Rather, it seems to me more likely that Mr Andrew McCaw ran matters together in the unresponsive part of the relevant answer. The trial judge’s view was open, but it does not seem to me to be the preferable view. Nor does the trial judge’s view seem to be underpinned by his impression of Mr Andrew McCaw as a witness – it came simply from the reference to the Asian fellow.
Secondly, the trial judge said that he did not accept Mr Andrew McCaw’s evidence that he had not “had a discussion … in connection with this case” with Mr Josie McCaw or Mr Perkins other than in the first few days after the accident, because that conflicted with the evidence of Mr Josie McCaw and Mr Perkins. Without going into detail, his Honour was entitled to decline to accept that evidence.
Thirdly, the trial judge said that in cross-examination Mr Andrew McCaw “showed an attitude of unconvincing mock indignation and aggression which led me to doubt the truthfulness of what he was saying in his evidence”. His Honour referred to one passage of evidence as showing that Mr Andrew McCaw was “unnecessarily defensive”. It is not clear whether he had in mind other passages, although there were other passages which could be said to show indignation or aggression. He said as to that passage that he inferred from Mr Andrew McCaw’s “aggressive demeanour when giving the preceding answer that he was untruthful in his answer”.
Taking up my earlier observation concerning attitude and manner, defensiveness or aggressive demeanour does not necessarily mean untruthfulness. Witnesses’ reactions under cross-examination vary. Sometimes they can be described as defensive or aggressive, and sometimes the defensiveness or aggressiveness may be thought an understandable response to cross-examination: the passage in question came after Mr Andrew McCaw had been (properly) pressed about discussions with his brother, and apparent aggressiveness may have been a reflection of his personality rather than untruthfulness.
In this case the inference drawn by the trial judge was open in the light of Mr Perkins’ evidence of discussions, although by no means from the aggressiveness of itself. The trial judge’s advantage of perceiving Mr Andrew McCaw’s demeanour underpins his view, despite what I have said in the preceding paragraph.
Fourthly, the trial judge said that he found “unconvincing” Mr Andrew McCaw’s denial that had spoken to his brother and to Mr Perkins in the few days before he gave his evidence. This was not explained further.
Mr Andrew McCaw was not cross-examined upon his denial, which in context was a denial of speaking about the accident. The evidence of Mr Josie McCaw included that he was “under strict instructions … not to talk to [Mr Andrew McCaw and Mr Perkins] about any of the case details”, and although the time scale was unclear it is understandable that the McCaw witnesses would have been told at the time of trial not to discuss the accident. The evidence of Mr Perkins did not justify that there had been discussions about the accident in the previous few days. Indeed, it was put to Mr Perkins (and he agreed) that he had not been told not to talk about the accident “until yesterday”. The days were left imprecise. If by “unconvincing” the trial judge meant that he did not accept the evidence, rather than that he had unresolved doubts about it, some further explanation was at the least desirable.
Fifthly, the trial judge said that Mr Andrew McCaw “appears to have exaggerated his description of the position of the Plaintiff’s stationary vehicle after the first and second collisions”, which “caused me to doubt the accuracy of his evidence generally”.
Mr Andrew McCaw said that after the first collision the rear of the Toyota van was about a foot outside the brake-down lane onto the carriageway, and that the two vehicles were pushed forward slightly so that the Toyota van was “off the road”. The trial judge saw an inconsistency with a photograph showing that the rear driver’s side tyre of the Toyota van was on the white line dividing the break-down lane and the carriageway, and appears to have thought that this was inconsistent with the Toyota van having been pushed so that it was off the road.
In my view, the evidence was insufficiently precise to find material exaggeration. The weight given to this reason by the trial judge is not clear, since he also said that he allowed for the possibility that the vehicles had been later moved “so I make no finding on this issue other than to identify a doubt I had on this evidence”; but a doubt on this evidence should not have been extended so as to cause doubt on the accuracy of Mr Andrew McCaw’s evidence generally and an unresolved doubt is of little significance.
Sixthly, the trial judge said that Mr Andrew McCaw’s evidence “on an incidental but nevertheless remarkable detail” conflicted with the evidence of the appellant. I have referred to Mr Andrew McCaw’s evidence of the laughing and giggling. The appellant gave evidence he saw no laughing and “I don’t laugh”. The trial judge said that he “took the Defendant to be a very serious person”, it seems accepting this and so finding conflict.
This was open to the trial judge. There is, however, a curiosity. If the trial judge rejected Mr Andrew McCaw’s evidence of the laughing and giggling, the first reason earlier discussed falls away. It is not easy to see how both the first reason and the sixth reason can support the trial judge’s conclusions on the evidence of Mr Andrew McCaw.
The trial judge said -
“96. Seventhly, and perhaps of the greatest concern over the veracity of his testimony, I noted that he was prepared to give an investigator an admittedly erroneous witness statement containing exaggerations of fact which he had provided to the investigator whilst drunk. Of equal concern, is that later he took no steps to correct that erroneous statement in circumstances where I find he must have known that at least one party in the litigation would be relying upon that erroneous statement which he had knowingly provided to the investigator in vino non veritas. This was not the kind of behaviour expected from a credible witness.”
The underlying evidence need not be described. As I have said, counsel for the appellant on appeal accepted that Mr Andrew McCaw was careless with the truth when dealing with the insurance investigators. That does not necessarily mean carelessness with the truth when giving evidence, nor was it shown that what he told the insurance investigators was other than that the respondent was not in the Toyota van at the time of the second collision. This was material, but what I have earlier said applies.
Seventhly, the trial judge regarded as “bizarre in its candour” and rejected as “inaccurate reconstruction” Mr Andrew McCaw’s evidence to the effect that the estimate of three to five minutes given in his evidence was more accurate than the estimate given to the insurance investigator because he was sober. Again, I have some difficulty with the reason. The trial judge’s starting point was that Mr Andrew McCaw was drunk and careless with the truth when speaking with the insurance investigator. Why should not evidence given when sober and on oath have a greater claim to accuracy? Why was it bizarre and to be rejected when Mr Andrew McCaw said so? Whether the evidence should be accepted, which depends inter alia on consistency with other evidence, is another matter; but this of itself appears to have been regarded by the trial judge as very adverse to Mr Andrew McCaw’s credibility.
Ninthly, the trial judge returned to instances of evidence given by Mr Andrew McCaw in an aggressive manner, referring also to displaying anger which was described as “not the behaviour one expects from a truthful witness whose evidence is being tested”. The displaying anger was in fact the witness saying that he was “getting angry”, when it was put to him that Mr Josie McCaw was going too fast for the road conditions, “because he wasn’t”. In the course of this reason his Honour described some evidence of Mr Andrew McCaw as “a further example of his proneness, for whatever reason, to incorrectly exaggerate his account of the events concerning the incident and in particular, the location of the Plaintiff when her vehicle was struck by the Defendant’s vehicle”. As I have said, demeanour was material but it would be dangerous too readily to draw conclusions from it. The trial judge quite readily drew conclusions.
Again, I have earlier set out the trial judge’s conclusions on the evidence of Mr Andrew McCaw. The conclusions extended to a finding that Messrs Josie McCaw and Andrew McCaw had collaborated on the content of the evidence they intended to give, which went beyond anything said in the reasons given with respect to the evidence of either of those witnesses and, it is important to note, had not been put to them. Discussion of the accident is one thing: collaboration on the evidence to be given is another.
Mr Andrew McCaw was soundly rejected as a witness “prepared to say anything without regard to the truth of what he was saying”. This was a very strong finding; not all the reasons given for it were sound.
(c) Mr Perkins
The trial judge inferred that Mr Perkins was the same age as Mr Andrew McCaw, whose best friend he had been since their days together at kindergarten. He said that Mr Perkins’ “initial evidence” was corroborative of Messrs Josie and Andrew McCaw “in that he claimed that they all got out of the respective vehicles and that they were having a cigarette whilst looking at the vehicle damage when the Defendant’s vehicle arrived on the scene and collided with the rear of the Plaintiff’s vehicle.”
The trial judge referred to evidence given by Mr Perkins that he and Mr Josie McCaw had “flashed it for hours”, meaning talked about the accident, but not “once this court case has happened”. His Honour took this to be when Mr Perkins was asked to come to Sydney to give evidence shortly before the hearing. He said that he thought it unlikely that there had not been discussion even at this late time, when Mr Josie McCaw drove Mr Perkins to Sydney from where he was stationed in a country centre, although this had not been put to either of them in cross-examination, and inferred that this had occurred because of evidence from which he took that Mr Perkins had talked about the accident with the Messrs McCaw over the years. He said, “It is clear from this evidence that contrary to the respective denials, the subject matter of the collision was discussed amongst the McCaw brothers and Mr Perkins.”
The trial judge did not give other reasons for his conclusions on the evidence of Mr Perkins before stating those conclusions. I have earlier set them out: they were also conclusions concerning the evidence of the Messrs McCaw, including that this Honour inferred that the discussions between the McCaw witnesses -
“ … had the effect of reinforcing a conflated and incorrect belief by these three witnesses concerning the sequence of events that occurred on the day in question. Consequentially, I find that they each gave incorrect evidence to the effect that the Plaintiff was outside her vehicle when it was struck from behind by the Defendant’s vehicle”.
What I have earlier said concerning the steps from discussion involving conflation to incorrect recollection on the central issue applies. Even if there was a conflated belief, whether it was an incorrect belief was another matter. With respect, the trial judge rather merged the two. A finding that the belief was incorrect depended on much else other than the reasons his Honour gave, to the extent that they were valid reasons, for considering that the evidence of the McCaw witnesses that the respondent was out of the Toyota van lacked reliability or veracity.
(d) Mrs Shimokawa

This left “massiveness” of the impact a matter of impression of the participant. The reaction to the impending collision was quite understandable in anticipation of something considerably less than a massive impact. While material, there was little in this matter.
In essence, in his conclusions his Honour considered that Mrs Shimokawa’s evidence was “dependent on hearsay” and was the product of mistaken reconstruction. However, this was not effectively put to Mrs Shimokawa in cross-examination, and in my view did not address the manner in which Mrs Shimoklawa’s evidence supported the appellant’s case.
(e) The appellant
The appellant described how he braked, swerved and hit the Toyota van, and -
“Q. I see, did you see any people at the side of the road?
A. WITNESS: Yes. Left-hand side, guardrail side, three men standing and then one woman standing. Altogether, four people standing and right-hand side three people, exactly I don’t know number, they are standing on the road. That why I couldn’t go right side, so had to go to other side and then collide.”
He said that he could not open the door of his vehicle, but got out after five to ten seconds, and approached the four people, and -
“Q. Did you identify yourself to the people standing by the side of the road?
A. WITNESS: They, before collide, they also they saw us. Four of them look at us and they frighten, like this, because they could see my car sliding.
Q. After you got out of the car, did you go over and introduce yourself to these people?
A. WITNESS: Well, I didn’t introduce my name or anything. First thing, they say, ‘are you all right?’
Q. There were three men and one woman: did the woman identify herself?
A. WITNESS: Well, I ask her who the driver ---
Q. Of what?
A. WITNESS: --- and she was.
Q. Who was the driver of what?
A. WITNESS: Well, standing talking with the three men was the driver.
Q. Who was the driver of what?
A. WITNESS: Toyota Hiace which I hit in front of my car.
Q. You asked her this and you saw her, you say do you, before you hit the car?
A. WITNESS: Yes, she was outside with three boy, and I asked her, ‘Are you all right?’ But I mean, didn’t mean, ‘Are you all right from accident?’ I asked her ‘are you all right’ because she seemed frightened with a worrying face on her to talking three boy.”
The trial judge’s conclusions on the evidence of the appellant, set out earlier in these reasons, incorporated his reasons for declining to accept that the appellant saw the respondent at the roadside prior to the second collision. They were essentially that the exigencies of the accident did not permit the appellant to identify the respondent at the roadside either prior to the second collision or before he (the appellant) got out of the Toyota bus, and that his identification was based on seeing the respondent after she had got out of the Toyota van following the second collision. That the appellant gave the evidence he did was explained, apparently, on the basis that it was the product of discussions with Mrs Shimokawa or was inferences from viewing the photographs. Thus his Honour’s conclusions as to the appellant’s evidence were to an extent linked to his conclusion that Mrs Shimokawa’s evidence was the product of hearsay.
There are difficulties with this. It had not been put to the appellant that his evidence of seeing the four persons was flawed by concentration on avoiding the second collision rather than observing the scene, and on his evidence seeing the four persons was very much part of what he did: he saw their fright as his vehicle slid. Further, his evidence linked the persons he approached after getting out of the Toyota bus directly with the four persons, one of them being the respondent; on the appellant’s evidence there was no question of adequacy of opportunity to identify the respondent while getting out of the Toyota bus. In similar manner to Mrs Shimokawa, the appellant’s identification was not by recognition of the respondent as the woman seen prior to the second collision, but by there being the four persons and, after the second collision, identification of her as one of the four persons including by her saying that she was the driver of the Toyota van.
The appellant’s evidence was really not met by the trial judge’s reasons for declining to accept it. While the appellant agreed that he had talked to his wife about the accident, it was not put to him that his evidence was founded on what she had told him, and it is hard to see how his evidence of seeing the four persons one of whom from the contact after the second collision the respondent could have been brought about by discussion with his wife. It is even hard to see how it could have been brought about by no more than hearsay given to his wife that there was no one in the Toyota van. The exigencies of the accident and discussions between the appellant and his wife were, of course, material to assessment of the reliability of the appellant’s evidence. But I have great difficulty in seeing that they led, in the manner reasoned by the trial judge, to the rejection of the appellant’s evidence.
I return to the submission that the trial judge took a detailed approach to matters telling against the credibility of the appellant’s witnesses, but not to the respondent’s credibility, so that the process of fact-finding was skewed. As I have indicated, the appellant’s written submissions included that the trial judge had erred in “searching for inconsistencies in detail” in the evidence of the appellant’s witnesses, in contrast with his approach to the evidence of the respondent.
It is not a complete answer to the submission that the matters identified by the appellant in the respondent’s evidence were, for the most part, of no substance. The sixth and possibly the seventh and eighth matters had as much or as little call upon the trial judge’s attention as some of the reasons his Honour gave for rejecting evidence of the appellant’s witnesses.
The appellant’s point was one of difference in approach. There were matters of substance bearing upon the credibility of the appellant’s witnesses, albeit in varying degrees, but the trial judge’s reasons do give an impression of seeking to give a host of reasons for doubting or worse their evidence but resting content with the favourable view taken of the respondent’s demeanour and the content of her evidence. The trial judge’s fact-finding, however, should be reviewed on its merits, and such an impression is an unsafe basis on which to impugn it; I put this aside.
The element of reliance on demeanour
As is apparent from the foregoing consideration of the analyses of the evidence of the respondent and of the appellant’s witnesses, the trial judge’s findings were to an extent demeanour-based in regard to the evidence of the respondent and of the McCaw witnesses. Even if not enunciated, as it was in particular in relation to the evidence of the respondent and Mr Andrew McCaw, the “subtle influence of demeanour” (Jones v Hyde (1989) 63 ALJR 349 at 351 per McHugh J) plays a part in credibility assessment.
The appellant submitted that, in saying that the respondent’s demeanour gave him no reason to doubt the credibility or content of her testimony, his Honour stated a conclusion without explanation. He submitted that the cross-examination of the McCaw witnesses was at times confrontational, although not improperly so, and (in substance) that there was undue perception by his Honour of unreliability or lack of veracity by reason of the manner in which their evidence was given.
It was not made clear what explanation should have been given in relation to the respondent’s demeanour. The trial judge was expressing a negative, and the appellant was not in a position to demonstrate unsatisfactory demeanour.
To an extent there is force in the submission concerning the McCaw witnesses. I have referred to a number of occasions on which the trial judge considered that the manner in which the witness gave evidence reflected adversely on his reliability or veracity, and have noted some difficulty in appreciating how the reflection properly arose. But in other respects it was clearly open to the trial judge to obtain assistance in his fact-finding from the impression made upon him by the witness, particularly in the case of Mr Andrew McCaw.
I do not think that the influence of demeanour, express or subtle, on the fact-finding in the present case is definitive in the appeal. Its contribution can be accepted, but that does not preclude appellate review of the fact-finding. It is sufficient that the danger of too readily drawing conclusions about truthfulness and reliability from the appearance of witnesses referred to in Fox v Percy at [30] in my view afflicted the fact-finding.
The element of putting to the appellant’s witnesses
It was put to Mr Josie McCaw that he had been untruthful in saying that the respondent was not in the Toyota van at the time of the second collision. It was put to Mr Andrew McCaw that he was mistaken about the respondent getting out of the Toyota van and talking to Mr Josie McCaw after the first collision, and that that happened after the second collision. Less directly, it was put to Mr Perkins that the respondent ‘wasn’t there”, meaning standing with them as the Toyota bus approached. It was put to Mrs Shimokawa, amongst other matters, that she had no idea whether anyone was in the Toyota van at the time of the second collision “except from something somebody told you”,
But it was not squarely put to any of the McCaw witnesses that their accounts, similar in the critical matter although not in detail, of getting out of the Holden and looking at the damage with the respondent, then being endangered by the second collision, was mistaken or false; or that what had in fact happened was that the respondent remained in the Toyota van for a couple of minutes and after she got out gave cigarettes to the McCaw witnesses and it was then that they engaged in conversation. Nor was it put to any of the McCaw witnesses that, for example, his recollection was astray because it was a terrifying experience, still less that he was telling a concocted story. Mr Josie McCaw responded to the cross-examination about carelessness with the truth when responding to the insurance investigators that in every statement he had made he had said that the respondent was not in the vehicle. This was not shown to be incorrect.
Reading the cross-examinations of the McCaw witnesses as a whole, it seems to me that the issue between the parties was appreciated: for example, Mr Perkins’ response to it being put that the respondent “wasn’t there” was “but she was out of the vehicle, thank you”. It remains, however, that putting the contrary version of events to a witness enables the witness to explain why that version is not as the witness recalls. The appellant did not at the trial clearly assert failure to comply with the rule in Browne v Dunn, and I do not deal with this element on that basis. But the failure more directly to put the contrary version in cross-examination meant that particular care and caution were required in finding that the witnesses were mistaken, and the more so in finding that they were untruthful. Yet, as has been indicated, the trial judge found adversely to the witnesses on some matters which had not been raised with them in cross-examination at all.
The elements of the two critical matters
It is convenient to deal with these together. There is considerable substance in these elements of the challenge to the trial judge’s findings.
There was not raised with any of the McCaw witnesses why they would give a false account of the course of events at the time of the accident. Nor did the trial judge address that matter, notwithstanding that in large measure he considered that the witnesses lacked not only reliability but also veracity. Nor was it put to any of the McCaw witnesses and the Shimokawa witnesses that there had been contact between them, let alone collusion, in relation to recollection of the events at the time of the accident or in relation to what might be said in their evidence.
An important matter for the trial judge’s consideration in coming to his findings was the unlikelihood that the two groups of witnesses would have expressed similar recollections on the essential point of whether the respondent was in the Toyota van at the time of the second collision, both groups unreliably or untruthfully, in the absence of some such contact or collusion. I do not say that the matter mandated acceptance of the appellant’s case in preference to the respondent’s case. But it required consideration in the fact-finding.
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)
Their Honours went on to say that in some, quite rare, cases where the facts fell short of being incontrovertible, the appellate court could conclude that the trial judge’s decision was glaringly improbable or contrary to compelling inferences, and if it did so should give effect to its own conclusion notwithstanding that the trial judge had expressly or implicitly been influenced by an opinion concerning the credibility of witnesses.
The constraints brought by the trial judge’s advantages to the appellate court’s review of fact-finding do not exclude recognition of error in the process of fact-finding in other respects. In Abalos v Australian Postal Commission (1990) 171 CLR 167, one of the trilogy of cases said in Fox v Percy at [26] to remind of the limits under which appellate judges typically operate when compared with trial judges, McHugh J (with whom Mason CJ and Deane, Dawson and Gaudron JJ agreed) took from the speech of Lord Sumner in SS Hontestroom v SS Sagaporack (1927) AC 37 at 47 that appellate judges are in a position of disadvantage against the trial judge “unless it can be shown that [the trial judge] has failed to use or has palpably misused his advantage”. These words, which have achieved mantra-like status, encompass where the trial judge has made credibility based findings (even expressly by regard to demeanour) for reasons which in whole or in part do not truly go to the reliability or veracity of the relevant evidence, or without taking account of an important consideration or considerations material to evaluation of the credibility or veracity.
In those circumstances there comes to the fore the appellate court’s advantage of the more mature assessment of the evidence than the pressures of decision-making at trial permitted, or which sometimes comes simply because second thoughts are better thoughts. Credibility determined from or with regard to demeanour is seldom the only basis for fact-finding, and commonly (and in the present case) there must be an evaluation of credibility together with other matters which weigh for or against the ultimate factual findings.
In a number of respects to which I have referred in the course of addressing the analyses of the evidence of the appellant’s witnesses, the trial judge gave reasons for adverse views of reliability or veracity which, on examination, I do not think warranted the reliance which appears to have been placed upon them. Some reasons were given which could properly have caused his Honour to take an unfavourable view of the evidence of the appellant’s witnesses, although variably between them. But his conclusions, often in strong terms requiring sound support, were founded on the collections of reasons, without indication that some only of the reasons sufficed. They are undermined when, in my view, to a material extent the reasons do not support them.
Further, and of particular importance, the trial judge did not bring into his consideration the two critical matters, despite their prominence in the submissions of the appellant at trial. His approach was rather to express acceptance of the respondent’s evidence, subject to his analyses of the conflicting evidence, and serially to reject on credibility grounds the conflicting evidence given by the appellant’s witnesses. He did not stand back to assess the significance of the evidence of those witnesses being congruent in the essential respect of the respondent being out of the Toyota van at the time of the second collision, and in particular the congruence despite any suggestion of contact or collusion of the evidence of the McCaw witnesses and Shimokawa witnesses. As I have said, in my view there was a serious deficiency in the fact-finding.
Leaving aside the elements of fact-finding skewed by differential approach to the analyses of evidence and of failure fully to put to the appellant’s witnesses the respondent’s version of events (with its own contrast with findings adverse to some of the appellant’s witnesses on matters not put to them), the process of fact-finding was in my opinion flawed, and the appellant’s challenge to his Honour’s findings should be upheld. The further elements would not of themselves give a basis for overturning the fact-finding, but provide some additional reason for doing so. On the review which this Court must undertake, despite the limitations flowing from the trial judge’s advantages I consider that the trial judge’s resolution of the “differing versions of conflicting liability evidence can not stand. (This does not mean that the opposite resolution should be substituted, see below.)

The respondent submitted to the effect that there was other substantial support for her case. In particular -
(a)there was evidence that the respondent phoned her husband and said that she “only just hit” the Holden and then a vehicle hit the rear of the Toyota van; her husband said that she was in pain the next morning; there was evidence from the respondent’s employer and aunt that she appeared to be in pain the next day; she attended a doctor on 24 November complaining of severe pain following the accident; and in histories thereafter given to doctors she attributed the injuries of which she complained to the accident: it had to be asked how she came to be injured if not in the second collision; and
(b)if, as the trial judge said at his [14], there was peak hour traffic, it was surprising that there should be a delay of some minutes before another vehicle, as it happened the Toyota bus, came to collide with the Toyota van.
The appellant responded to the effect that the suffering of injury in the second collision ultimately depended on the respondent’s evidence of injury and that it was in the second collision. He said that one of the doctors (Dr Zeman) was of the opinion that there had been a musculoligamentous strain which had since resolved and that no objective clinical findings could explain the current complaints of pain, and that another of the doctors (Dr Cummine) could not identify any significant organic abnormality that could reasonably be attributed to the accident, and was of the opinion that the respondent was fit for all forms of employment for which she was educationally qualified. Even if the respondent had developed what Dr Zeman called chronic pain syndrome, he submitted, the origin could have been but slight injury in the first collision, and that what injury was suffered could not be separated from whether there was injury in the second collision. On the other matter, the evidence supported that there was peak hour traffic, but Mr Josie McCaw said that when they were at the side of the road “the right-hand lane – was still running free” and -
“Q. It couldn’t possibly be that there would be 2 minutes between the first impact and the second, could it?
A. Yeah, because we had time to get out and talk. People were changing lanes. One would jump out. People were changing lanes, that’s what we were worried about to start with. That a car might run into the back of hers. And then it did.”
The respondent’s submissions and the appellant’s response both made valid points, likely to be important in fresh findings as to injury to the respondent. But they were not referred to by the trial judge in coming to his findings that the respondent was injured in the second collision in the manner in which she gave evidence; in that respect also, although not contrary to the appellant’s interests, it may be thought there was deficiency in the fact-finding. Fact-finding must be on the whole of the evidence, and this Court is not able properly to evaluate the witnesses for itself. I do not think it is open to this Court to find for itself, in reliance on the other support for the respondent’s case, that that case should be accepted. If the reasons given by the trial judge for his findings do not sustain them, this Court can not properly come to the same findings for itself.
A new trial
As will be apparent, nor can this Court find for itself that the respondent did not suffer injury in the second collision in the manner of which she gave evidence. There must be a new trial, at least as to causation of injury in the accident. How far should the new trial go?
As I have said, there was no appeal in relation to the finding that the appellant had failed to take reasonable care his driving, and that should not be part of the new trial. I do not think, however, that the nature and extent of the respondent’s injuries can properly be divorced from whether or not she sustained them in the second collision.
The trial judge’s assessment of damages was made upon his finding that she was injured in the second collision, and it could be said that it will be found at the new trial either that she was not so injured, in which case her claim would fail, or that she was so injured, in which case the assessment would stand, so that the new trial should not extend to assessment of damages. However, the evidence as to the nature and extent of the respondent’s injuries may not be the same, or the judge may not accept the respondent’s evidence as fully as the trial judge appears to have done. As a general proposition, if there is to be a new trial it should be of the whole case unless the Court thinks that more injustice would thereby be done (see Pateman v Higgin (1957) 97 CLR 521 at 527; Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343 at [45]-[48]).
In my opinion, it is in the interests of justice that the judge conducting the new trial should not be confined to the existing assessment of damages, in the event that the respondent succeeds on liability, where that assessment may not accord with his findings as to the nature and extent of the respondent’s injuries.
Accordingly, the new trial should be on all issues except whether the appellant had failed to take reasonable care in his driving.
The assessment of damages
Since the new trial is to extend to the assessment of damages, the appeal as to damages falls away. Damages will be re-assessed on the findings as to nature and extent of injury then made. It should nonetheless be asked whether the appeal as to damages should still be addressed: Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12].
In that connection, in Rebenta Pty Ltd v Wise [2009] NSWCA 212 Basten JA (with whose reasons Ipp JA and Sackville AJA agreed) said -
“[9] ... When such a course is appropriate will depend to a significant extent on whether the court is conducting a trial or is an intermediate court of appeal. It is often desirable in the case of a trial judge, who has heard evidence on a matter, to determine factual questions arising from the evidence, even if they are not necessary on conclusions which have been reached on other issues. That is because some account must always be taken of the possibility of a successful appeal, requiring the further evidence to be assessed, or in all likelihood repeated on a rehearing. The costs which are likely to flow to the parties in such an event will rarely be justified by the savings in judicial time. Further, such an event is more likely where there is a full appeal by way of rehearing, than where there is a more limited right of appeal.
[10] With respect to an intermediate court of appeal, there is no further right of appeal, absent a grant of special leave to appeal to the High Court. While it seems undesirable in many cases to assess the likelihood of a grant of special leave and if granted, the likelihood of success on an appeal, in some cases such consideration may be appropriate: cf Health World Ltd v Shin-Sun Australia Pty Ltd [2009] FCAFC 14; 174 FCR 218 at [47] (Perram J, Emmett and Besanko JJ agreeing). Nevertheless, it will usually be open to the intermediate appellate court to work on the basis that a successful appeal is, in a run-of-the-mill case, a possibility, but not a probability.
[11] There is also a principle of parsimony which applies in terms of the allocation of judicial resources. Parties in civil litigation do not have the right to demand that a court provide resources greater than those necessary to determine the dispute before it. An intermediate court of appeal is entitled to take into account the limits of its resources, its workload and the interests of other litigants: see Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206at [824]–[833] (Ipp JA, Giles JA and Hodgson JA agreeing).
[12] It is also appropriate to take into account the risk that a court will more readily fall into error in dealing with an issue which it knows does not arise in the circumstances of the case: cf Wade v Burns [1966] HCA 35 ; 115 CLR 537. In some cases, such a risk will be warranted; in other cases it will not be in the interests of the best administration of justice: see Tarabay Pty Ltd v Leite [2008] NSWCA 259 at [27]–[28]; Lindholdt v Hyer [2008] NSWCA 264; 251 ALR 514 at [184]–[185].”
In my opinion, in the present case the appeal as to damages should not be addressed. It could not readily be described as a run-of-the-mill case, but the elements in the challenge to the trial judge’s findings that the respondent was injured in the second collision are not out of the ordinary and I do not regard my conclusion that his Honour’s fact-finding should be overturned as close to the line. These reasons are already lengthy, occasioned by the nature of the challenge, and the principle of parsimony has force.
It should be said, however, that at first sight the damages awarded to the respondent were remarkably high. As often occurs, counsel for the respondent provided to the trial judge a schedule of the damages for which she contended. The damages awarded were half as much again. The trial judge, of course, was not bound to the schedule of damages as an upper limit, and the appellant did not at trial significantly challenge the respondent’s evidence going to quantum. But the respondent’s counsel realistically said that “if the trial judge had given what was on the plaintiff’s schedule of damages I certainly wouldn’t have come along and asked your Honours to increase it to what this trial judge gave”, and the respondent’s submissions were to the effect that there was no error of principle in what the trial judge did. Declining to address the appeal as to damages should not be taken to endorse the trial judge’s assessment.
Orders
I propose the orders -
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.
IPP JA: I agree with Giles JA.
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LAST UPDATED:
11 September 2009