Skinner v Broadbent

[2006] WASCA 2

SKINNER -v- BROADBENT [2006] WASCA 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 2
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:61/2004	Heard:	12 OCTOBER 2005
Coram:	STEYTLER P MCLURE JA PULLIN JA	Delivered:	13/01/06
No of pages:	39	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MARTIN FRANCIS SKINNER JEANETTE BROADBENT
Catchwords:	Appeals Appeal from a trial Judge's findings of fact Functions of appellate courts Where findings based on credibility of witnesses Turns on own facts
Legislation:	District Court of Western Australia Act 1969 (WA), s 79 Rules of the Supreme Court 1971 (WA), O 63 r 2 Supreme Court Act 1935 (WA), s 58 Supreme Court (Court of Appeal) Rules 2005 (WA), r 25
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fitzgibbon v Waterways Authority [2003] NSWCA 294 Fox v Percy (2003) 214 CLR 118 Jones v Hyde (1989) 63 ALJR 349 Mifsud v Campbell (1991) 21 NSWLR 725 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SS Hontestroom v SS Sagaporack [1927] AC 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Suvaal v Cessnock City Council (2003) 77 ALJR 1449 Water Board v Moustakas (1988) 180 CLR 491 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SKINNER -v- BROADBENT [2006] WASCA 2 CORAM : STEYTLER P

MCLURE JA
PULLIN JA

HEARD : 12 OCTOBER 2005 DELIVERED : 13 JANUARY 2006 FILE NO/S : FUL 61 of 2004 BETWEEN : MARTIN FRANCIS SKINNER

Appellant

AND

JEANETTE BROADBENT
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GREAVES DCJ

Citation : SKINNER -v- BROADBENT [2004] WADC 74

File No : CIV 1996 of 2001

Catchwords:

Appeals - Appeal from a trial Judge's findings of fact - Functions of appellate courts - Where findings based on credibility of witnesses - Turns on own facts

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Legislation:

District Court of Western Australia Act 1969 (WA), s 79

Rules of the Supreme Court 1971 (WA), O 63 r 2
Supreme Court Act 1935 (WA), s 58
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr G R Hancy
Respondent : Mr A J Castley

Solicitors:

Appellant : Slater & Gordon
Respondent : Bradford & Co

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fitzgibbon v Waterways Authority [2003] NSWCA 294
Fox v Percy (2003) 214 CLR 118
Jones v Hyde (1989) 63 ALJR 349
Mifsud v Campbell (1991) 21 NSWLR 725
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247


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SS Hontestroom v SS Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Suvaal v Cessnock City Council (2003) 77 ALJR 1449
Water Board v Moustakas (1988) 180 CLR 491
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

Case(s) also cited:

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208


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1 STEYTLER P: This appeal concerns a motor vehicle accident that occurred at about 10.30 pm on 4 January 2000. The appellant was driving his car, a V8 Holden Commodore, when it left the road, cut a path through adjacent property and rolled over. The respondent was a passenger in the car at the time.

2 The appellant sued the respondent for damages for personal injuries suffered by him as a result of the accident. He claimed that she had caused the accident. In his statement of claim, he pleaded that she had attempted to take control of the car and that she had switched off the ignition, removed the ignition key and thrown it out of the passenger side window, causing the car to become uncontrollable because the removal of the key left the car incapable of being steered or braked.

3 The respondent denied the appellant's allegations and counter-claimed for damages for personal injuries suffered by her as a result of the accident. She claimed that the accident was caused by the appellant's negligence. In her counter-claim, she pleaded that he had driven the car at an excessive speed, failed to control it adequately or at all, lost control of the car while driving too fast and failed to apply its brakes adequately or at all.

4 The trial Judge dismissed the appellant's claim and awarded judgment in favour of the respondent on her counter-claim. The appellant appeals against that decision.

The evidence of the parties at the trial

5 The evidence at the trial established that the appellant and the respondent were in a relationship of sorts at the time of the accident. Between June and November 1998 they had been in a de facto relationship which advanced to the point at which they were engaged to be married. In late November, some 10 days before the wedding, the respondent terminated the relationship. However, the relationship resumed about six weeks later, albeit on an "on and off" basis and with the parties living apart from each other.

6 The appellant and the respondent gave evidence. Each was critical of the other. The appellant said that, during the relationship and prior to the date of the accident, he and the respondent had had disagreements while travelling in a car and, on two such occasions, the respondent had threatened to jump out of the car while it was moving. On each occasion the situation had been resolved by the appellant taking the respondent home. The appellant said that the respondent was highly emotional and

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that her behaviour was frequently erratic. The respondent, on the other hand, said that the appellant had a dreadful temper, that he was argumentative and that he was prone to angry outbursts.

7 When it came to the circumstances leading up to the accident, the evidence of the parties was in stark contrast. While the appellant and the respondent agreed that they had gone out to dinner that evening, and that they had argued while having dinner, they could agree on little else.

8 The appellant's memory had been affected by the injuries sustained by him in the accident. He said that, immediately after the accident, he could remember "almost nothing" of the evening of the accident. However, by the time of the trial he could remember "some things" which had taken place between the time of leaving the restaurant and the time of the accident.

9 The appellant said that he knew that, after leaving the restaurant and getting into his car with the respondent, he had completely undressed (he was found naked in the car immediately after the accident). He could not remember why he had undressed but said that it was not unusual for him and the respondent to have sex in a car. He remembered driving the respondent to her house. He did not remember going into her house, but recalled an altercation with her at the end of her street. He also remembered that, while he was driving along Mortimer Road (where the accident occurred), the respondent had threatened to jump out of the car. He said that, when she made this threat, he accelerated up to around 80 kilometres an hour and said, "If you're going to jump – don't be stupid, if you're going to jump, jump now." He said that the respondent thereupon tried to open the car door and that either she closed it or it closed of its own volition. He went on to say, of his only other memory of events immediately prior to the accident:

"I know I saw her left profile on my lap. I saw her arm somewhere up the near [sic] steering wheel, and then I have – and these aren't sequential, I can't tell you – and I don't know how related they are, and then I have another sensation of darkness and going backwards."

He went on to explain this "vague recollection" by saying that the respondent's head had been on his lap, facing towards the dash board, with her arm up near the steering wheel. He said that he could not see what her arm was doing. A little later in his evidence, he said that, while he did not see the respondent's hands on the car keys, he saw them "where the keys

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are". This memory had returned to him in the week after he had been discharged from hospital.

10 The appellant said that, some time after the accident, he spoke to the respondent on the telephone. He said that she asked him repeatedly what he remembered. At first, he said to her that he remembered nothing. However, when he said to her that he had a vague recollection of her head being on his lap and her hand near the keys, she "snapped" and "went right off", saying:

"You tried to push me out the car. You were suicidal. You were trying to kill us. Anyway, I'm only five foot tall. I couldn't reach the keys. If I stay with you, I'll never get what I want. Don't ever ring me again."

He said that this was the last occasion upon which he ever spoke with the respondent.

11 The respondent's evidence was very different.

12 She said that, when she and the appellant left the restaurant and got into the appellant's car, the appellant had undressed. He then tried to forcibly remove her clothing and, in the process, tore her underwear and dress. She said that she was angry. She told the appellant that she wanted to go home. The appellant drove her to her house. When she got out of the car, the appellant threatened to kill himself and so she got back into the car. She said that the appellant then sped off. The car was travelling east along Mortimer Road. She felt in danger because of the high speed at which the appellant was driving. She said that she was screaming at the top of her voice for the appellant to stop the car and let her out of it. However, he did not do so and, instead, leaned over her as if to open the door and said, "Now you can get out". She said that, at that point, the car skidded on the gravel verge, before veering across the road to the place where it overturned. In the last question asked of her in the course of her evidence in chief, she was asked whether, while the car was travelling along Mortimer Road, she had made any move to get the keys from the ignition. She answered, "Quite possibly but I didn't – I didn't. I did not take those keys out of the car …".

13 Under cross-examination, the respondent admitted that she might have partially opened the door and tried to get out of the car while the appellant was driving. She also admitted, after having at first denied it, that she had kept asking the appellant for the keys to the ignition. She

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said that he would not give them to her. She denied that she had turned the ignition off and taken the keys.

14 The respondent remembered speaking to the appellant after the accident. However, she said that when she spoke to him he did not remember what had happened and she had had to tell him. She denied that he told her that he remembered her arm near the keys of the car.

15 In a report which she gave to the police concerning the accident, the respondent said that, immediately after the accident, she had heard the appellant screaming and saying, "You should have let me die. Why didn't you let me die?". It was put to her in cross-examination that the appellant's injuries were such that he had been incapable of speaking and that what she had said was "a total lie". She denied that she had told any lies. She said that it had sounded to her as if the appellant had said the words in question.

Other evidence at the trial

16 The trial Judge's unchallenged finding, based upon observations by others who attended the scene of the accident shortly after it had happened (in particular, a police officer, Senior Constable John Jones), was that the appellant's car had been travelling east along Mortimer Road, that the car had skidded on the gravel verge on the passenger side of the vehicle ("northern verge") and that it had then veered across the road and into an adjacent property on the driver's side of the vehicle ("southern verge") before overturning.

17 No one saw the accident. However, a nearby resident, a Mr Milan Vasic, heard a number of sounds. He lived on the northern side of Mortimer Road. His property has a link mesh gate which abuts the northern verge. The gate is about 20 metres from his house. He was lying in bed at the time of the accident. He heard the sounds of stones hitting his gate, followed by a loud "thud" noise. He did not recall having heard the sound of a car engine. Another nearby resident, Mr Herbert Belohlawek, who lived on the property adjacent to the southern verge, on which the vehicle finished up, heard what he described as "a commotion". He did not realise that a car had come through his garden until he went outside and saw the overturned vehicle.

18 Mr Vasic and Mr Belohlawek were the first to arrive at the scene of the accident. Both noticed that the engine and headlights of the car were off. Both said that the appellant, who was strapped into the car by his seatbelt, was hanging upside down, partly out of the driver's side window

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of the car, so that his face was in the sand. Both said that the appellant was not talking, although Mr Belohlawek said that he "made a gurgling sound". Mr Belohlawek said that he had tried to dig underneath the appellant's head so as "to try and give him more room to breathe better". Mr Kymberly White, an ambulance paramedic who attended the crash site, said that the appellant's injuries, which included bilateral jaw fractures, were such that he was at no stage able to talk. The evidence established that he remained unable to do so for some two weeks.

19 In all, at least a dozen people attended the scene of the accident, including policemen, ambulance officers, firemen and neighbours. All of those who gave evidence agreed that neither the engine nor the lights of the car were on following the crash.

20 The evidence established that, on the evening of the accident, the appellant had had one set of car keys in the car ignition and a spare set in the central console of the car. The keys which had been in the central console were found by Constable Adam Frost, who also attended the scene of the accident, on the inside ceiling of the vehicle. That is where they might have been expected to be found, after falling out of the console, once the car had rolled over. Constable Frost found no other keys. Neither Mr Belohlawek nor Mr Vasic saw any ignition keys at the site of the accident. Mr Desmond Newton, a tow-truck driver who attended the scene, and Mr Michael Johnston, a volunteer fire-fighter who was there, did not see any key in the car's ignition (Mr Newton said that he looked at the ignition and that the ignition key was not there).

21 Senior Constable Jones, when he attended the scene, walked along the route which the car had taken immediately prior to the accident. He found no keys. However, he was not looking for any. He said that the area was not well lit and that he had only his police torch. He acknowledged that there was every chance that he might have missed something small.

22 At about 6 am on the following day, Mr Belohlawek also walked along the path which the car had followed immediately prior to the crash. He, too, did not see any keys. However, he said that he had not been looking for any specific object and that he was simply tracing the path of the car out of curiosity. Mr Vasic, too, walked along the route which had been taken by the car. He did so at about 8 am on the day after the accident. He did not see any keys or other debris left by the car.

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23 Mr Jeremy Malkovic, an employee of the appellant, went to the accident site on the morning after the accident. He went there in the hope of finding the appellant's mobile telephone, which he needed for work (a mobile telephone had earlier been found in the appellant's car by Mr Johnston). He had earlier inspected the appellant's car at a tow-truck yard and said that he saw that there were no keys in the car's ignition and that the ignition had been switched off. While searching for the telephone (having sought, and obtained, permission to do so from Mr Belohlawek's son), he traced the route which the car had followed immediately before the accident. He found the car keys about two metres into the gravel shoulder on the northern verge. The place where he found them was close to the "disturbed gravel" on the northern verge. It was shortly after that point that the car had veered across the road towards the southern verge.

24 Mr Harold Michel, a tow-truck driver who had attended the scene, said that he had been able to turn the wheels of the car by using a piece of wood. However, in the course of cross-examination, he confirmed that he had given a signed statement to an investigator in which he had said that the steering of the car had been locked and that he had "had to help the tow-truck driver to bounce the car to line it up with the tray". He said that, at the time of giving his oral evidence, he could not say whether or not the steering had been locked. Mr Newton, on the other hand, said that the steering of the car had been locked on an angle and that this caused some difficulty when he connected the car up to his tow-truck.

25 No expert evidence was led at the trial as to how the car (which had an automatic gear system) might have been expected to behave if its key was removed from the ignition while it was still being driven. However, in his evidence, the appellant said that in such a circumstance the engine would immediately turn off, as would the headlights and power steering. He said that, with the steering locked, he would be unable to control the movement of the car. He knew this from his experience in having removed the key from the car's ignition on an occasion when he had been parking the car. His evidence on this point was not challenged.

26 There was some evidence on the question of how difficult it would be to remove the ignition key from a moving vehicle. Mr Martin Simms, a chartered consulting engineer who gave evidence at the trial, said that he had tested a similar model Holden in order to see how difficult it would be for a person to lean over and remove the key from the ignition. He concluded that it would be easy to do so if the passenger was not wearing a seat belt, as had been the case with the respondent at the time of the

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accident. She said, in her evidence, that she had taken her seat belt off when the car "got around the corner" when driving along Mortimer Road.

27 Mr Simms also concluded, in the course of his evidence, that the front passenger window had been closed at the time of the crash. He was led to this conclusion by the presence of fractured window particles in the window track and by the fact that the winding mechanism for the window was found in the fully raised position.

28 Mr Bohdan Generowicz, a chartered civil engineer who gave evidence at the trial, had also examined the car. He did so some time after it had been examined by Mr Simms. He found no fractured window particles in the upper portion of the window tracks of the front passenger window and consequently concluded that that window had been down at the time of the accident. However, in the course of cross-examination he agreed that if there were glass beads in the window runner at the top of the window immediately after the accident (as had been found by Mr Simms), he would have arrived at a different conclusion. He had not considered the position of the winder mechanism. No evidence was led as regards the question whether or not the winder mechanism had been damaged in the crash, or whether it might have been forced into the fully raised position through forces from the crash. However, it might be inferred that one or both of Mr Simms and Mr Generowicz would have mentioned this possibility if it had been regarded as realistic.

The trial Judge's findings

29 The judgment of the trial Judge was very brief. After summarising some of the material evidence, and making the finding to which I have earlier referred in respect of the objective circumstances of the accident, he said:

"[24] In my opinion, the evidence does not support the conclusion the defendant [respondent] had a history of impulsive, emotionally inconsistent and erratic behaviour. The evidence is of a relationship between these parties in which they had their ups and downs. I find the defendant argued with the plaintiff because she wished him to stop the car and let her out. I find on her evidence she went to open the door but did not open it. I find the plaintiff leaned towards her and the car skidded on the gravel verge. I find the defendant did not lie across the plaintiff's lap. Given these conclusions, I am of the view the evidence of Mr Vasic and Mr Belohlawek does not

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support a reasonable inference that the defendant removed the ignition keys. I reach the same conclusion about the evidence of Mr Malkovic that he observed no keys in the ignition and the ignition was in the off position.

[25] Having found the car skidded on the gravel verge at approximately 80 kilometres per hour, veered across the road and thereafter travelled up to 100 metres before coming to a halt on its roof, I conclude it is more likely than not on the evidence that the plaintiff did not remove the keys and throw them out of the car window. On the evidence of Mr Simms and Mr Generowicz, I find it is more likely than not that the passenger window was closed at the time of the accident. I find that fact is consistent with the evidence of the defendant that she did not remove the keys and throw them out of the window. I acknowledge this conclusion is not consistent with the evidence of Mr Malkovic that he found a set of the plaintiff's keys on the gravel verge, but in the light of the evidence of Constable Jones and the greater likelihood that the car skidded on the gravel verge, I consider it is the conclusion the Court ought to reach on the evidence as a whole on the balance of probabilities.

[26] Accordingly, in my opinion, the plaintiff's claim fails. On the counterclaim, I find the plaintiff drove his car at an excessive speed shortly before the accident in the course of which he refused to stop the car and let the defendant out. I accept the evidence of the defendant the plaintiff was 'extremely mad that night'. In the light of the evidence of the events shortly preceding the evidence, I find the speed at which the plaintiff was driving was excessive in all the circumstances and resulted in the car skidding in the gravel and then leaving the road. In my opinion, there should be judgment for the defendant on the counterclaim."

Grounds of appeal

30 There are four grounds of appeal. They read as follows:

"1. The learned trial judge erred in fact in that he should have found that when the appellant's car came to rest the

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engine was not running, the ignition key was not in the ignition, the ignition was in the off position, the steering was locked, and the ignition key was lying on the passenger's (north) side of Mortimer road about 100 metres from the point where the car came to rest;

2. The learned trial judge erred in fact in that he failed to but should have found that when the respondent was interviewed by the police after the accident she lied when she said that the appellant had spoken to her in the upturned car after it came to rest in that the appellant suffered severe facial injuries, his head was outside the window of the car and pressed into the dirt, and accordingly he was unable to talk.

3. The learned trial judge erred in fact in that he failed to but should have evaluated the evidence of the respondent against the background of the findings he should have made as set out in grounds of appeal 1 and 2 and he should have rejected the evidence of the respondent and found that when the appellant was driving his car on Mortimer Road the respondent removed the ignition key from the ignition and threw it from the car.

4. The learned trial judge erred in fact in that he should have found that the respondent was, and the appellant was not, negligent in that the respondent removed the ignition key from the ignition and threw it from the car causing the car to run out of control."

Appeals from a trial Judge's findings of fact

31 An appeal to this court is a creature of statute: s 79 of the District Court of Western Australia Act 1969 and s 58 of the Supreme Court Act 1935. The appeal is by way of rehearing: r 25 of the Court of Appeal Rules and the former O 63 r 2 of the Rules of the Supreme Court. In this case the rehearing is solely on the evidence which was before the trial court. In Fox v Percy (2003) 214 CLR 118 at 125, Gleeson CJ, Gummow and Kirby JJ recognised that provisions such as those to which I have referred shape the requirements and limitations of an appeal. They went on to say, at 125 - 126 [23]:

"On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the

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first instance' Dearman v Dearman (1908)7 CLR 549 at 561 … On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record … These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share …"

32 In this case the trial Judge did not explicitly say that his decision was dependent on his evaluation of the witnesses' credibility. However, it seems plain that credibility questions did arise, particularly as between the appellant and the respondent, and it seems, from what was said by him (at [24]) in his reasons, that he must have made such an assessment. The disadvantage that an appellate court has in such a case, when compared with the trial Judge, has been commented upon in many cases. In earlier times, courts often cited the following extract from the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47:

"[N]ot to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it."

33 More recently, Kirby J has regarded the suggestion that an appellant, in order to succeed, must show affirmatively that the trial Judge "misused his advantage" in assessing the credibility of a witness as being "redolent of a time when appeal, particularly on factual determinations, was a novel phenomenon": State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 327 [88]. His Honour went on to say:

"At that time, appeal was still sometimes regarded, so far as it required the re-examination of facts, as beneath judicial dignity

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(Lord Holt CJ in R v Earl of Banbury (1694) Skinner517 at 523 [90 ER 231 at 235]). Such re-examination was a painful and uncongenial obligation. In the context of modern appellate rights, now so long established by statute, such attitudes can safely be consigned to the history books. Many injustices may lurk in factual mistakes – probably more than in errors of law."

34 Accepting what was said by Kirby J in this passage, there is no doubt that caution must nevertheless be exercised in overturning findings of fact which are based upon the credibility of a witness. In Jones v Hyde (1989) 63 ALJR 349 at 351, and again in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, McHugh J pointed out that, when a trial Judge resolves a conflict of evidence between witnesses, "the subtle influence of demeanour on his or her determination cannot be overlooked" (see also Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1836). In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ said:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact … If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' … or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' … ".

Even allowing for the subsequent criticism by Kirby J of the use of the words "misused his advantage", this amounts to a strong reminder of the difficulty which faces any person seeking to overturn a finding of this kind. So, in Suvaal v Cessnock City Council (2003) 77 ALJR 1449 at 1462 [73], McHugh and Kirby JJ, after pointing out that, at different times in legal history, the weight given to credibility assessment and the impediment it presents to the exercise of an appellate rehearing have changed, partly because of "a heightened appreciation of the benefits of appellate correction of error, including factual error", went on to say:

"But these considerations have not eliminated the appellate obligation to respect the advantages which the primary decision-maker has that are denied to the appellate court. As a

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matter of logic, experience and legal authority, it cannot be otherwise".

(See also Fox v Percy, at 166, per Callinan J).

35 Of course, as was pointed by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, at 128 [28], "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" (see also Waterways Authority at 1846 [176]). They went on to say, at [28] and [29]:

"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 …

That this is so is demonstrated in several recent decisions of this Court … In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' (Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57) or 'contrary to compelling inferences' in the case (Chambers v Jobling (1986) 7 NSWLR 1 at 10). In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process."

36 Their Honours also went on to say (at 129 [31]) that, in recent years, judges have become more aware of research that has cast doubt on their ability to tell truth from falsehood accurately on the basis of their assessment of the appearance of witnesses. They said, in that regard:

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"Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."

37 It is important, in this case, to reiterate that, when deciding between competing versions of the facts, it is necessary for a trial judge to explain why one version has been preferred over another. In doing so, the trial judge should refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of significant evidence, set out his or her findings as to how he or she has come to accept the one over the other: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443; Waterways Authority at 1830. It is a judge's duty to consider all of the evidence in a case and, where important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442 and Beale, at 443. As Samuels JA pointed out in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, for a judge to ignore evidence critical to an issue of fact found against a party may promote a sense of grievance and create a litigant who is both disappointed and disturbed, because it tends to deny both the fact and the appearance of justice having been done.

38 It has also been said that it is incumbent upon a trial judge to provide understandable and logical reasons for making relevant findings of fact: Beale, at 443 - 444; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 283. In Soulemezis at 281 McHugh JA said that the failure to explain the basis of a crucial finding of fact may involve a breach of the principle that justice must not only be done but must be seen to be done. Of course, an appellate court must take care to ensure that dissatisfaction with a finding of fact does not mislead it into holding that the trial judge has failed to give reasons for that finding: Soulemezis, at 281.

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Was there error?

39 There was, in this case, a very significant body of evidence which supported the proposition that the keys were removed from the ignition before the accident.

40 First, it is clear that the keys were not in the ignition shortly after the accident. That appears from the evidence of Mr Vasic, Mr Belohlawek and Mr Johnston. It is also consistent with the evidence of Constable Frost (it was common cause that the keys found by him were those which had been in the central console) and with the evidence of the tow-truck operator who arrived on the following morning. There was no suggestion that either of the occupants of the vehicle had turned the ignition off after the accident. Indeed, it seems most unlikely that either would have done so. The appellant was severely injured and, as I have earlier explained, had his face in the sand. The respondent was in severe pain and had one arm pinned under the car.

41 Secondly, there was no evidence that anyone who arrived at the scene had removed the keys from the car's ignition, nor any reason why any of them should have done so. The first two men to arrive at the scene, Mr Vasic and Mr Belohlawek, both said that the car's engine and lights were off.

42 Thirdly, it may be significant that Mr Vasic did not recall having heard the sound of a car engine immediately prior to the accident, notwithstanding that he had heard the sound of gravel striking his gate and also a "thumping" noise. I have said that Mr Belohlawek said only that he had heard "a commotion", which he did not, at first, appreciate had been made by a car entering his property.

43 If the keys were removed from the ignition prior to the accident, it is difficult to know what other explanation there might be for this than that offered by the appellant. The respondent did not suggest that the appellant took the keys from the ignition and it is hard to think that he might have had any reason for doing so. On the other hand, the respondent was prepared to acknowledge, at the trial, that she had asked the appellant to give her the keys. Her denial that, when he refused to do so, she removed them herself and threw them out of the car (although she appears to have accepted, as a possibility, that she had made a move to get the keys from the ignition) must be considered in the light of the other evidence. Firstly, as I have said, the evidence supports the proposition that the keys were not in the car immediately after the accident. Secondly, as I have also said, there is a significant body of evidence to support the

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proposition that the keys were removed from the ignition prior to the accident. Thirdly, the appellant had no apparent reason to remove the keys from the ignition, let alone throw them out of the car. Fourthly, the respondent admitted that she had asked for the keys and that it was possible that she had made a move to get them. Finally, the respondent acknowledged that she had removed her seat belt. This would have enabled her to reach the keys.

44 The respondent's denial that she took the keys and threw them out of the car had also to be assessed in the light of two other considerations. The first is the evidence of Mr Malkovic that he found the keys in the place in which they would have been expected to be found if events had been as the appellant believed them to have happened. If the respondent leaned across the appellant to grab the keys, that might have led to the car moving onto the gravel on the northern verge shortly before Mr Vasic's gate, very close to where the keys were found, on the passenger side of the vehicle. The second is that, on the face of it, the respondent had shown a preparedness to be untruthful, so as to bolster her version of events. I have mentioned that she said that, immediately after the accident, the appellant told her that she should have let him die. The evidence established that he was in no position to have said anything at all. I have said that his head was in the sand when Mr Vasic and Mr Belohlawek found him. The two men had to take steps in order to ensure that he was able to breathe. I have also said that his injuries were such as to render him unable to speak for some two weeks.

45 Very little of this evidence was analysed by the trial Judge. In preferring the evidence of the respondent, he made no real analysis of the significance of the absence of the keys from the ignition immediately after the accident, and why that might have been so if they had not been removed by the respondent. Nor did he make any analysis as regards the significance of the fact that Mr Vasic, in particular, did not recall having heard a car engine, although he did recall having heard the other sounds mentioned. Nor did he give any reason for ascribing no significance to, or possibly rejecting, the evidence of Mr Malkovich as regards his finding of the keys. While he did mention that Constable Jones did not see the keys when he inspected the area with his torch, he also mentioned that Constable Jones had said that he may have missed them (I have mentioned that Constable Jones was not looking for the car keys). Nor did the trial Judge discuss, at all, what, if any (see Suvaal above, at [82]), significance should be attached, for the purposes of assessing the respondent's credibility generally, to her seemingly untruthful evidence in attributing to the appellant words reflecting a desire to kill himself.

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46 His Honour seems to have placed some reliance on the fact that the car had skidded on the gravel on the northern verge before veering across the road. He also placed significance on the fact that the passenger side window appears to have been closed at the time of the accident. As to the first of these, I have already said that the presence of the car on the gravel on the northern verge seems to me to be as consistent with the appellant's version of events as it is with that of the respondent. As to the second point, there is no doubt that the evidence of Mr Simms and Mr Generowicz supports the proposition that the front passenger window was closed at the time of the accident and, hence, casts an element of doubt on the proposition that the keys were thrown out of that window. However, that element of doubt had to be considered in the light of the fact that it is possible that the window was closed by the respondent immediately after throwing the keys out of it. It had also to be considered in the light of the whole of the evidence, including that in support of the proposition that the keys were removed from the ignition before the car rolled over and, quite possibly, before it veered across the road. Of course, regard had also be had to the fact that the keys were not found in the car after the accident and to the evidence of Mr Malkovic, the transcript of which reads rationally and cogently. Mr Malkovic was not at the scene of the accident on the night on which it occurred and could not then have taken any keys from the car.

47 I should add that counsel for the appellant raised, also, the possibility that the keys were thrown from the car through an open passenger door. The respondent conceded in cross-examination that she had possibly partially opened the car door, although this concession seems to have related to a time prior to that of the alleged removal of the keys. While this was not the way in which the appellant had particularised his plea of negligence against the respondent, his counsel did raise the possibility of the keys having been thrown through an open door, in the course of his closing submissions at the trial. He said, of the significance of the closed passenger window:

"It has significance but it assumes that the only way of getting a key out of a car is through the window … in the end it may not be significant at all, because you can open the door and throw a key out and you will recall there is evidence even from the plaintiff herself that she tried to open the door, so that is another explanation."

The trial Judge did not refer to this possibility in his judgment, presumably because of his finding that the respondent "went to open the

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door but did not open it". That finding overlooks the fact that the respondent herself acknowledged that she might have partially opened the passenger door although, as I have said, she put this possibility at a time previous to that at which the keys were allegedly taken. While it was never put to the respondent that the keys were thrown out of the car through an open door, it is plain from her evidence at the trial that her response would inevitably have been one of denial that she took the keys at any time.

48 In all of the circumstances, it seems to me that it was simply not open to the trial Judge to arrive at the conclusion reached by him without any analysis of much of the evidence to which I have referred which, taken at face value, pointed strongly in favour of the conclusion that the respondent removed the keys from the ignition and threw them out of the car while it was still in motion. While he had an undoubted advantage over this Court in seeing and hearing the witnesses, that fact, of itself, could not, in my respectful opinion, relieve him of the obligation to consider, and analyse, the evidence to which I have referred and explain why it is that he considered that it should not lead to the conclusion contended for by the appellant which, on the face of it, was logically persuasive and took account of all of the objective facts established by the evidence (see, in this respect, Beale, at 443 – 444; Soulemezis, at 281; Mifsud, at 728 and Waterways Authority, at 1830). In my respectful opinion his failure to do so was such as to deny both the fact and appearance of justice having been done: Mifsud, at 728.

49 I would consequently uphold ground 3 of the grounds of appeal to the extent that it asserts that the trial Judge should have evaluated, but did not evaluate, the evidence of the respondent against the evidence to which I have referred which, as it seems to me, appears to have supported the conclusions contended for in grounds 1 and 2 of the grounds of appeal, each of which was significant to the ultimate disposition of the case.

50 It follows that I would allow the appeal and set aside the decision arrived at by the trial Judge. As unfortunate and undesirable as that outcome plainly is, I can see no alternative than to order that the matter be re-tried. I doubt that this Court can substitute its own findings for those of the trial Judge without having seen and heard any of the witnesses and without the benefit of any findings on many of the critical issues.

51 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Steytler P and Pullin JA. I agree with

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Pullin JA that the appeal should be dismissed. However, I propose to state my own reasons for reaching that conclusion.

52 The facts, grounds of appeal and evidence are set out in the other judgments and not repeated here. In essence, the appellant contends that the trial Judge ought to have found that the respondent removed the car keys from the ignition and threw them from the vehicle. That requires this Court to set aside the relevant finding made by the trial Judge and to substitute a finding in the terms sought by the appellant. The appellant also contends that the trial Judge failed to evaluate the respondent's evidence against the background of findings it is said the trial Judge should have made being that:

(1) when the vehicle came to rest:

(a) the engine was not running;
(b) the ignition key was not in the ignition;
(c) the ignition was in the off position;
(d) the steering was locked; and
(e) the ignition key was lying on the northern side of Mortimer Road;
(2) the respondent lied when she said the appellant had spoken to her in the upturned vehicle after it came to rest.

53 At the time of the accident, the 44-year old male appellant was naked and driving his V8 fuel-injected automatic Holden Berlina with power assisted steering and electric windows along Mortimer Road (which led nowhere of interest to the occupants of the vehicle). The appellant had removed his clothing after leaving the Chinese Restaurant with his dinner companion, the 42-year old respondent. Some time shortly after leaving the restaurant, the respondent was also naked although at the time of the accident she was wearing a dress.

54 The appellant's memory was significantly impaired as a result of the accident. He had no clear recollection of the events of the evening in question, including no recollection of what led to or followed him removing his clothes. What recollections he did have were described as vague. One such vague recollection was of the respondent's head on his lap and her arm somewhere up near the steering wheel. In view of the unorthodox behaviour of the parties after leaving the restaurant and the

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appellant's impaired memory, no weight can or should be given to this vague recollection. The appellant's case theory is entirely circumstantial.

55 Further, no expert evidence was adduced as to the consequences of turning the ignition key to the off position and removing it whilst the vehicle was travelling at 80 kilometres per hour. The appellant gave evidence that when his stationary vehicle was switched off, the wheels locked if the steering wheel was moved marginally to the left or right. There is also no expert evidence on whether the nature and the extent of the damage to the appellant's vehicle could have caused the vehicle's engine to stop and its headlights to be extinguished. The fact that the engine and lights of the vehicle were off when Messrs Vasic and Belohlawek attended the scene was itself equivocal, albeit consistent with the appellant's case theory. Further, I agree with Pullin JA's analysis of the evidence on the questions of what those witnesses heard immediately prior to the accident and whether there were car keys in the ignition immediately after the accident. That evidence is also equivocal.

56 The primary evidence to support the appellant's case theory is that of Mr Jeremy Malkovic who said he located on the gravel shoulder on the northern side of Mortimer Road a bundle of keys, one of which was a key to the appellant's vehicle. Mr Malkovic was an employee of the appellant. He commenced working for him in 1998/1999 and was running the appellant's business at the time he gave evidence. Mr Malkovic said he learnt of the accident from a fellow employee, Mr Gustav Nordstrom, who was the respondent's brother-in-law. On the morning after the accident, Mr Malkovic and Mr Nordstrom inspected the appellant's vehicle at the tow-truck yard. Mr Malkovic noted that the key was not in the ignition and the ignition was in the off position. They then went to the scene of the accident, arriving at around 9.45 am. Mr Malkovic retraced the path taken by the appellant's vehicle and said he found the bundle of keys on the gravel shoulder on the northern side of Mortimer Road almost in line with the eastern edge of Bruce Court which intersects at a T-junction on the southern side of Mortimer Road. There were at least four keys in the bundle and they were "plain to be seen". Mr Malkovic handed the keys to Mr Nordstrom who was not called by either party.

57 It was common cause that the appellant had at least three sets of keys to his car, one of which was kept at his house. The appellant's business was conducted from those premises. Mr Malkovic accepted in cross-examination that in addition to being an employee of the appellant, he was also a close friend. It was expressly put to him that his evidence concerning the keys was fabricated.

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58 Three other witnesses had also retraced the path taken by the appellant's vehicle. All did so before Mr Malkovic attended the scene. They did not locate any keys. The other witnesses were not looking for keys but neither was Mr Malkovic. His evidence was that he was searching for the appellant's mobile phone.

59 The other three witnesses were Senior Constable Jones, Mr Vasic and Mr Belohlawek. Senior Constable Jones was in the crash investigation section of Fremantle Police where he had worked since 1994. He arrived at the scene at around 11.40 pm. He traced the path the vehicle had taken. He saw disturbed gravel on the northern shoulder of Mortimer Road extending between 20 and 30 metres, which he concluded to be associated with the accident. He said the disturbed gravel extended from slightly to the west of Bruce Court up to where the keys were said to be located by Mr Malkovic, which location was shown on a plan prepared by one of the appellant's experts, Mr Simms. Mr Simms' plan depicted the appellant's vehicle leaving the gravel shoulder and returning onto Mortimer Road to the west of Bruce Court. However, Mr Simms inspected the accident scene around five weeks after the accident and confirmed that there was no evidence of where the appellant's vehicle left or returned onto Mortimer Road save for some marks he assumed were made by police. Senior Constable Jones said the vehicle returned from the gravel shoulder onto Mortimer Road at around the eastern edge of Bruce Court and travelled on an acute angle to where it eventually came to rest. He was asked about the area of his search by reference to the location of the keys on the plan. He said that he scoured the gravel shoulder using a police torch. He continued:

"So this position where the keys were, indicated on this plan, is very close to the disturbed gravel?---Very close. Very close to where I saw – and the area where we were looking, but I certainly did not see any keys on the night.

And you were shining your torch there?---All in that whole vicinity there, yes, just looking for reasons that may have caused the vehicle to be off the road or may have caused the vehicle to be out of control, go out of control. Things I had in mind are things like kangaroos, steel stakes, wire, anything like that; debris that gets left lying around on the sides of roads. You look for these sorts of things. …"

60 Senior Constable Jones conceded that the area was not well-lit although the torches were "pretty good but they're not brilliant". He

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accepted he might not have picked something up if it was small and that he was not looking for keys because he had no reason to. On the other hand, the bundle of keys were plain to be seen and in the area of his search.

61 At around 8 am the morning after the accident, Mr Vasic followed the marks on the gravel shoulder on the northern side of Mortimer Road. His evidence was that the vehicle was four metres off the bitumen. He did not see any keys, however like Senior Constable Jones, he was not looking for them.

62 Mr Belohlawek retraced the vehicle's route at 6 am on the morning after the accident. He went out onto Mortimer Road to see if he could work out how the vehicle had got into trouble and saw skid marks on the gravel shoulder on the north-side of Mortimer Road. As he walked on the northern shoulder he was looking for marks and debris but did not see anything and did not see any keys.

63 On my reading of the trial Judge's reasons, he did not accept Mr Malkovic's evidence. He stated (at [25]) that his finding that the respondent did not remove the keys and throw them out of the window was not consistent with Mr Malkovic's evidence. On the way the parties ran the case at trial, that is correct. The only conclusion to be drawn from the conclusion of inconsistency is that the trial Judge did not accept Mr Malkovic's evidence. The trial Judge explained why at [25] as follows:

"… but in the light of the evidence of Constable Jones and the greater likelihood that the car skidded on the gravel verge, I consider it is the conclusion the Court ought to reach on the evidence as a whole on the balance of probabilities."

64 I take the reference to Constable Jones' evidence to be all his evidence including his assessment that the disturbed gravel was accident-related and that he searched the area where Mr Malkovic allegedly found the keys. The trial Judge concluded (at [24]) that the appellant's admitted movement towards the respondent in response to her movement to get out of the vehicle caused it to leave the bitumen and skid on the gravel shoulder. That is more inherently probable than the appellant's case theory having regard to the vehicle's unexplained (and unexplored) changes of direction, being left off the bitumen to the gravel shoulder, 20 to 30 metres along the gravel shoulder then returning to the bitumen all with the steering wheel in a locked position at least by the first

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movement to the left. In my view, it was open to the trial Judge on the evidence of Senior Constable Jones, which was supported by the evidence of Messrs Vasic and Belohlawek, not to accept Mr Malkovic's evidence.

65 However, even if the trial Judge accepted Mr Malkovic's evidence, it does not necessarily follow that the respondent took the keys from the ignition and threw them out of the car. It was clear that all of the windows were closed at the time of the accident. They were electric windows and the question whether electric windows could be operated after the ignition key is moved to the off position was not explored in evidence. However, it was not suggested to any witness that they had thrown the keys through an open window which they had then closed. Accepting Mr Malkovic's evidence, there are three potential explanations for the keys being where he found them: the respondent removed the keys and somehow threw them out of the vehicle; the appellant removed the keys and threw them out of the vehicle; or the keys were picked up and accidentally dropped by one of the many people involved in the rescue and clean up of the scene on the night of the accident. Only the appellant's case theory was advanced at trial but that does not affect the range of possibilities. Further, I see no reason for excluding the appellant from the potential scenarios. By all accounts, the events culminating in the accident happened in a very short space of time when emotions were running high. In those circumstances, the respondent may not have been aware of all of the appellant's actions. The location of the keys is of no assistance without knowing where the car was on the gravel shoulder, where it returned to the bitumen and at what angle and whether the keys were thrown or dropped. Further, the appellant was driving naked down a dead-end street and accelerated when his passenger asked him to stop so she could get out of the vehicle. In those circumstances I would not rely on rationality or reason as a basis for excluding the appellant as a possible candidate. The appellant's hypothesis does not stand out as inherently more rational or reliable. To the contrary, the uncontradicted evidence of the respondent is that she did not remove the keys or throw them out of the vehicle.

66 That raises the alleged lie. Some time after the accident, the respondent gave a statement to police in which she stated that whilst they were still in the upturned vehicle she heard the appellant screaming words to the effect "you should've let me die. Why didn't you let me die". The evidence at trial was that the appellant was unable to speak because of his injuries and the position of his face in sand at least when seen by the first witnesses at the scene.

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67 In cross-examination the respondent said she thought she heard screaming but maybe it was her that was screaming. When asked whether the appellant talked to her, the respondent said she did not know but that it sounded like he did and it sounded like he said "you should've let me die". What actually happened and what she thought had happened are different, particularly so in the very stressful circumstances in which she found herself once the car had come to rest. It is apparent that the trial Judge did not regard the prior statement as reflecting on the credibility or reliability of her evidence generally. There are good reasons for that. Much of the respondent's evidence on the central issues was either uncontradicted or corroborated in material respects. Her evidence of how the accident occurred was corroborated by Senior Constable Jones. It was clear there was an emotional altercation between the appellant and the respondent which resulted in her threatening to get out of the car and asking the appellant to stop and hand over the keys. The appellant accepts that his response was to increase the speed of the vehicle and reach towards the respondent. The respondent's statement to police does not materially impact on the assessment of her general honesty or reliability.

68 However, the trial Judge's findings that the respondent did not turn the ignition key to the off position, remove it or throw it from the vehicle is based in significant measure on the appellant's credibility. The trial Judge accepted the respondent's evidence on all material matters. He found that the respondent argued with the appellant because she wished him to stop the car and let her out; that she went to open the car door but did not open it; that the appellant leaned towards the respondent and the vehicle skidded on the gravel verge; that the respondent did not lie across the appellant's lap; and that the appellant was extremely angry on the night. In these circumstances, the appellant has to demonstrate that the trial Judge's finding is erroneous because it is inconsistent with the incontrovertible facts or uncontested testimony or the decision is glaringly improbable or contrary to compelling inferences in the case. As will be apparent from the discussion to date, the appellant has not demonstrated that the finding is erroneous in the senses to which I have referred.

69 The second basis of the challenge is that the trial Judge failed to evaluate the respondent's evidence against the background of the findings which the appellant contends should have been made. This is not a general attack on the sufficiency of the trial Judge's reasons or the adequacy of the process of fact-finding, which in many cases are

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inter-related (Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [130]). The premise of the challenge is that the trial Judge should have made the specified findings set out earlier. The appellant has failed to establish the premise and thus the ground must fail. In any event, even if the challenge was wider, it would not succeed. The trial Judge was clearly focused on the central issue, namely whether or not the respondent turned the vehicle off, removed the keys and threw them from the vehicle. In his assessment, the acceptance of the respondent's evidence was inconsistent with Mr Malkovic's evidence. It necessarily follows that the trial Judge did not accept that evidence. The trial Judge having identified the conflict, explained, albeit in a shorthand way, why he preferred the respondent's evidence. As the essential plank of the appellant's case theory had been rejected, it was unnecessary to make findings on the other matters on which the appellant relies. There is no dispute as to the legal principles to be applied when determining the sufficiency of judicial reasons or reasoning. They are set out in the reasons of Steytler P. In failing to fully and expressly analyse the relevant evidence and explain why he did not accept Mr Malkovic's evidence, the trial Judge's reasons fall short of the desirable standard. However, the deficiencies are not of such a magnitude as to give rise to appealable error.

70 It is unnecessary for the determination of this appeal to resolve whether the appellant's case in closing and in the appeal was within the parameters of his pleaded particulars of negligence. He pleaded that the respondent threw the keys through the car window but eventually contended for a more general finding that did not specify how the keys came to be thrown from the car. That more general approach was put to the respondent in cross-examination. My preliminary view is that the pleading is wide enough. If not, the question is whether the relevant issue was in substance joined or litigated by the parties: Water Board v Moustakas (1988) 180 CLR 491 at 496. In any event the trial Judge's finding (at [24]) that the respondent did not take the keys out of the ignition covers the more general case.

71 For these reasons, I would dismiss the appeal.

72 PULLIN JA: I would dismiss the appeal for the following reasons.

What is not in dispute

73 It is not in dispute that the appellant drove the vehicle which was involved in the accident and that the respondent was a passenger in the vehicle. It is not in dispute that the appellant was "frustrated" with the

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respondent (AB 37), that the appellant and respondent had an altercation while the appellant was driving, that the respondent said the appellant was driving too fast, that the respondent threatened to jump out of the car, that in response the appellant accelerated up to approximately 80 kms per hour, that the appellant reached across the vehicle to the respondent's side and pushed her or pulled her. (There is a dispute about whether the reason for reaching across that he was trying to pull her back in to the car because she was trying to get out or whether he was trying to push her.) The appellant taunted the respondent to jump out of the car.

74 At the time all this was taking place or soon after, the wheels of the vehicle went into the gravel on the passenger side of the road and then veered across to the other side of the road and crashed. Both the appellant and the respondent suffered personal injuries. The appellant sued the respondent for damages. The respondent counterclaimed against the appellant.

The trial Judge's conclusion about the cause of the accident

75 At [22] his Honour concluded:

"In my opinion, the evidence of PC Jones corroborates that of the defendant that the car skidded on the gravel verge before it veered across Mortimer Road. On the evidence it is not open to determine the precise speed of the vehicle at the time. The defendant believes it was about 80 kilometres per hour and I accept that estimate. On this evidence, therefore, I find the car skidded on the gravel verge at approximately 80 kilometres per hour, veered across the road and thereafter travelled up to 100 metres before coming to a halt on its roof in the private property."

76 At [26] his Honour found:

"… I find the plaintiff drove his car at an excessive speed shortly before the accident in the course of which he refused to stop the car and let the defendant out. … In the light of the evidence of the events shortly preceding the evidence [sic], I find the speed at which the plaintiff was driving was excessive in all the circumstances and resulted in the car skidding in the gravel and then leaving the road. …"

77 As a result, his Honour dismissed the claim and upheld the counterclaim.
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The appellant's case against the respondent

78 The appellant's case was that the respondent's negligent conduct caused the accident. The case was based entirely on circumstantial evidence. From the circumstances, despite the respondent's denial that she did so and in the absence of direct testimony from the appellant on the point, the appellant invited the Court to hold that the respondent reached across, removed the keys from the ignition and threw them out of the passenger side window, this causing the steering to lock up and consequently causing the accident. The circumstances which the appellant pointed to were the evidence that the keys were found the next morning on the road verge on the passenger side of the road where they would have been if they had been thrown out of the window soon after the vehicle started veering over to the driver's side of the road; the evidence of some witnesses who said that there were no car keys in the ignition after the accident; the evidence of a witness who said that there was no car engine noise before the accident and the evidence of witnesses who said the keys were not found in the car. The appellant also planned to lead expert evidence that the front passenger window was down but that plan did not come to fruition. The experts called by the appellant in fact proved that the window was closed.

What the appellant pleaded

79 The appellant advanced a hypothesis which, if accepted, may have explained why the accident happened. The hypothesis was not merely that the respondent took the keys out of the ignition and dropped them on the floor. The hypothesis which the appellant proposed and pleaded was set out in the statement of claim. Paragraph 4 of the statement of claim read:

"The accident was caused by the negligence of the defendant.

PARTICULARS

4.1 Attempting to take control of the car from the Plaintiff.

4.2 Switching off the ignition and removing the key therefrom.

4.3 Throwing the ignition key and its accompanying bunch of keys, out of the passenger side of the window.

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4.4 Rendering the said vehicle uncontrollable in that the removal of the key from the ignition left the car incapable of being steered and incapable of being braked.

…"

The respondent's credibility

80 One of the grounds of appeal is that the learned trial Judge did not refer to evidence which reflected on the respondent's credibility. As a result, I will examine the appellant's case concerning the pleaded hypothesis without reference to any of the respondent's evidence.

How the pleading shaped the evidence and the conduct of the case

81 If the case had been that the respondent removed the ignition key and dropped it on the floor, then the hypothesis would have required some proof that the ignition key was found in the vehicle or near the vehicle at its resting place. To make such an allegation would have run into difficulties of proof. If the hypothesis was that the respondent took the keys and threw them out of the driver's window, the keys would not have been found on the passenger's side verge. The appellant chose to advance the hypothesis that the respondent took the keys from the ignition and threw them out of the passenger side window. Two engineers, Mr Simms and Mr Generowicz, were called. They gave evidence on the issue about whether the window was up or down at the time of the accident. No-one suggested that if the window was open when the car struck the gravel, and the keys thrown out after the car went out of control, that the electric windows were then operated to close the window during the short period of time that elapsed between the vehicle striking the gravel, veering to the other side of the road and travelling over rough terrain to the point of impact. So if the passenger's window was found to be closed, the appellant's hypothesis could not be sustained.

82 Mr Simms said that there were glass fragments trapped in the seal where the top of the raised window enters when it was raised in the fully up position. However, he saw that there were a lot of glass fragments up to about a third height and then there was no glass. That left open the possibility that the window was partially open and that fragments of broken glass fell into the top seal when the car overturned. To eliminate that possibility Mr Simms looked into the door and observed that the strip of metal that lifts the window up was just below the top of the door. His evidence concluded with the expression of an opinion that the window was "fully closed".

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83 Mr Generowicz expressed the opinion that the front passenger's window had been partly open and all other windows closed. In cross-examination he said that if he had found beads of glass in the front passenger's window runner at the top he would have formed a different conclusion. He said he was not an expert on window mechanisms

How the Judge dealt with the evidence which had been shaped by the pleadings

84 His Honour, having heard the evidence of Mr Simms and Mr Generowicz, made a finding that the passenger window was closed at the time of the accident. That was a critical finding. It is a finding supported by the evidence. That finding is not the subject of any challenge. It is a finding that does not depend on the respondent's evidence or her credibility. That finding precluded a finding that the accident happened as the appellant hypothesised and why the keys were found where they were the morning after the accident.

The appellant's attempt on appeal to diminish the importance of this finding

85 Grounds 3 and 4 of the appeal now allege that the respondent removed the ignition key from the ignition "and threw it from the car" or "threw it from the car causing the car to run out of control". Grounds 3 and 4 no longer contend that it was thrown out of the window. A suggestion was made by counsel for the appellant during his oral submissions to this Court that the respondent may have thrown the keys out of her door. The respondent however, was not facing an allegation that the keys were thrown out when the door was open. The allegation is that they were thrown through the window. Late in the trial, after all evidence had been taken and counsel had addressed, counsel for the appellant attempted to change the pleaded hypothesis in the same way. The circumstances are more fully detailed below.

The circumstantial evidence - was there engine noise before the accident?

86 One of the pieces of circumstantial evidence said to be of importance is the fact that no engine noise was heard before the accident. The appellant claimed that Mr Vasic gave such evidence. His evidence was as follows:

"Did you hear any sound of a car engine or brakes?---I don't recall hearing an engine but I definitely didn't hear any brakes."

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87 In my opinion that is not evidence that the engine was not running at the time of the accident. The witness clearly distinguished between what he was prepared to testify he did not hear and what he could not recall. There was no other witness who was asked to recall if they heard any noise of an engine running immediately before the impact. The fact that Mr Belohlawek heard a "commotion" cannot be elevated into evidence that there was no engine noise.

88 There is no doubt that the engine was not running and that the lights were not on after the accident but that is not surprising. The vehicle was extensively damaged in the accident. The vehicle examination report which was carried out by police vehicle examiners revealed that the headlights failed to operate when inspected after the crash. The vehicle could not be road tested due to the extensive damage. No inference can be drawn that the engine was not running just before the accident because it was not running after the accident.

Were there car keys in the ignition immediately after the accident?

89 At different stages during the night immediately after the accident there were up to 15 to 20 people in attendance at the crash scene (AB 81). Mr Vasic gave this evidence. Out of the 15 to 20 people present, seven were called. They were Mr Vasic, Mr Belohlawek, Mr White (an ambulance paramedic), Mr Newton (a tow truck driver), Mr Frost (a policeman), Mr Michel (another tow truck driver) and a Mr Johnston (a fire brigade officer).

90 Mr Vasic and Mr Belohlawek were among the first on the scene. Mr Vasic said that he did not examine the ignition (AB 86). Mr Belohlawek was asked "Did you at any time check for ignition keys or check the ignition?" and he replied "I may have done but I can't honestly say whether I did or not". He was then asked: "Do you recall finding any ignition keys?" and he replied "No".

91 Mr White was not asked any questions about looking for the keys or checking the ignition.

92 Mr Newton gave evidence that he looked in the ignition and there were no keys in the ignition; that the steering was intact and it was locked (see AB 106). That evidence did not explain when he checked the ignition and he did not say how many other people were there at the time. It is obvious however, that he did not start trying to deal with the vehicle until the occupants had been removed and placed in the ambulance and until the police who had arrived had completed their investigation. From

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evidence he gave in cross-examination, it seems clear that his observations about whether the keys were there were observations made when he started to take the vehicle away. He said that others used a tractor to pull the vehicle back onto its wheels because Mr Newton could not get his truck to the vehicle. He said at AB 107:

"There was no keys [sic] in the ignition when it was loaded onto the tilt tray".

93 Constable Frost's evidence was admitted via a written statement which was tendered by consent. From that statement it is clear that by the time he arrived, two ambulances were in attendance and preparing to leave. It was then that he inspected the vehicle and saw a set of keys on the inside ceiling of the vehicle (which the parties seem to accept was a spare set of keys). His statement does not say that he checked the ignition but it may be inferred that he did and saw no keys.

94 Mr Michel said that by the time he arrived, there were other people already at the scene (AB 196). He held the light while people were removed from the vehicle. He was asked whether he looked into the vehicle at any stage (AB 197) and he answered "I got close to the vehicle and the smell was too bad, so I didn't really get too close into the vehicle. I stood next to it but I didn't really look inside." In a written statement given sometime later, he said that the steering of the car was locked and he had to help the tilt truck driver bounce the car to line it up with the tray. He said he could not remember seeing any keys.

95 A Mr Johnston gave evidence that he was a member of a voluntary fire brigade and that he attended as he was staying nearby. He said that normally his first response was to see that the battery was terminated so that there was no chance of sparks. He said that when he arrived he could not get to the battery because the bonnet was tight on the ground, the engine was not running and the lights were off and the area was completely dark so he did not worry about turning off the engine. He said that he spent time inside the vehicle trying to assess how to remove the male occupant, but he gave no evidence about looking for the keys or not.

96 In my opinion, none of this establishes on the balance of probabilities that there were no keys in the ignition or that the engine was not running at the time the vehicle travelled off the road and came to a halt.

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The circumstantial evidence - Mr Malkovic's evidence

97 Mr Malkovic's evidence about the location of the keys is evidence in support of the hypothesis. His Honour referred to this evidence.

The circumstantial evidence - the appellant's evidence

98 The appellant's evidence that the respondent was leaning across his lap and that her arm was "up near the steering wheel" is evidence in support of the pleaded hypothesis.

Grounds of appeal

99 The first ground of appeal reads:

"The learned trial judge erred in fact in that he should have found that when the appellant's car came to rest the engine was not running, the ignition key was not in the ignition, the ignition was in the off position, the steering was locked, and the ignition key was lying on the passenger's (north) side of Mortimer road about 100 metres from the point where the car came to rest;"

100 In my opinion it does not assist the appellant to argue that the engine was not running after the accident. This was an uncontentious point. All witnesses called by all parties agreed that when the vehicle had come to rest, the engine was not running. The issue was whether the engine was running up until the point of impact. It can be accepted that the engine was not running if the respondent had removed the keys and thrown them through her window; but the issue now being examined is whether the trial Judge should have found the engine was running or not. The mere statement of the hypothesis is not evidence. In my opinion there is no evidence that the engine was not running before the accident. In my opinion it cannot be said that the Judge "should have found" that the engine was not running before the accident.

101 As to the second point referred to in this ground of appeal, all that could be said about the ignition key was that of the 15 to 20 people who attended at the scene, only some were called as witnesses and only two of those, Mr Newton and Constable Frost gave evidence that they looked for the key. They did so a long time after the accident and after many other people present may have taken the elementary precaution of turning off the ignition and perhaps removing the key.

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102 In my opinion it cannot be established from the slight evidence that the Judge "should have found" that the key was not in the ignition immediately after the accident.

103 There is no doubt that the ignition key was found on the road where Mr Malkovic said that it was. His Honour expressly acknowledges the evidence that Mr Malkovic found the set of keys on the gravel verge and he implicitly accepts that evidence. However, the unchallenged finding that the passenger window was closed means that there must be some other explanation for the keys being found at that location. More is said about this below.

Ground 2

104 Ground 2 reads:

"The learned trial judge erred in fact in that he failed to but should have found that when the respondent was interviewed by the police after the accident she lied when she said that the appellant had spoken to her in the upturned car after it came to rest in that the appellant suffered severe facial injuries, his head was outside the window of the car and pressed into the dirt, and accordingly he was unable to talk."

105 It is true that his Honour did not refer to the respondent's statement when interviewed. However, in light of the undisputed facts which I have set out above, and in view of his Honour's unchallenged finding that the window was up at the time of the accident, questions about the respondent's credibility are irrelevant.

106 The respondent denied that she took the keys from the ignition but if that evidence is ignored, the appellant had to prove the hypothesis pleaded on the balance of probabilities. The hypothesis could not be true if the window was up and his Honour made a finding to that effect.

The attempt at trial to amend the hypothesis

107 The appellant attempted to alter the hypothesis at the end of the trial. The submission by counsel in closing, which is quoted by Steytler P, did not, in my opinion, require the trial Judge to consider a hypothesis that the respondent did not throw the keys out of the window but instead opened the door and dropped them out. The case was not conducted on that basis. Counsel for the appellant opened the case by detailing the evidence which would be led to show that the window was open "just before the crash" (t/s 5); evidence was led on that subject; it was not put to the

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respondent that she opened her door and threw them out and in closing submissions the respondent's counsel addressed in detail the evidence dealing with the issue about whether the window was up or down. The passage which Steytler P quotes from the closing address of counsel for the appellant came after the trial Judge had asked whether it would be significant if he found that all the windows of the car were up. Counsel said in response that it "may not be significant" because "you can open the door and throw a key out". Not surprisingly in reply, counsel for the respondent complained that it was "not open to the plaintiff to change tack and now start asserting that the keys went out of the car through an open door". He pointed out that it was a proposition not ever put to defendant; that it had not been pleaded, and that the assertion had not been addressed in the course of the trial at all. He complained that it would be "grossly unfair" to the respondent to have to deal with such an allegation. I agree that it was not open to attempt to change the hypothesis at the end of the trial.

108 It was not open to the appellant to alter the hypothesis on appeal to say that the keys could have been dropped out of the car door because that was not the basis on which the case was fought.

Grounds 3 and 4

109 In my opinion, in view of the finding that the window was up, grounds 3 and 4 should therefore fail. They read:

"3. The learned trial judge erred in fact in that he failed to but should have evaluated the evidence of the respondent against the background of the findings he should have made as set out in the grounds of appeal 1 and 2 and he should have rejected the evidence of the respondent and found that when the appellant was driving his car on Mortimer Road the respondent removed the ignition key from the ignition and threw it from the car.

4. The learned trial judge erred in fact in that he should have found that the respondent was, and the appellant was not, negligent in that the respondent removed the ignition key from the ignition and threw it from the car causing the car to run out of control."

110 It is of note that these grounds assert that the finding should have been that keys were thrown from the car; not that they were thrown through the window.
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The adequacy of the trial Judge's reasons for decision

111 In this case the attack in the grounds of appeal is on conclusions that his Honour reached, but I will also give consideration to whether the method by which the Judge reached his conclusion was flawed. That is the basis of Steytler P's reasons for decision and it is implicit in ground 3.

112 The recent decision of The Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 is an example of such a case. The High Court upheld the New South Wales Court of Appeal's decision which set aside the trial Judge's judgment on the basis of inadequate reasons. In Fitzgibbon v Waterways Authority [2003] NSWCA 294 Foster AJA referred to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 where it was said that a failure by a trial Judge to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. Foster AJA also referred to Mifsud v Campbell (1991) 21 NSWLR 725 where the point was made that for a Judge to ignore evidence critical to an issue in a case "… may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed'." To ignore evidence "critical" or "crucial" to an issue would be a failure by the Judge to do what the nature of the office requires. Foster AJA said at [106] that the reasoning process in Fitzgibbon's case could not have failed to leave the appellant with a significant sense of grievance. He would not only be disappointed in the result but be disturbed by it.

113 In my opinion the appellant in this case had no reason to be disturbed by his Honour's reasoning. The learned Judge did not fail to explain the basis on which he reached his conclusion that it was the appellant and not the respondent who caused the accident. On the face of it the appellant was driving at an excessive speed in the circumstances. The circumstances were that there was an argument taking place, the passenger was trying, or threatening to get out of the vehicle and instead of slowing down the appellant sped up. The altercation became physical, with the appellant either pushing or pulling the respondent, and then, or very shortly after, the wheels of the car went into the gravel and the car veered off the road and crashed. His Honour's reasoning that this amounted to negligence on the part of the appellant is reasonable when viewed in the light of the undisputed evidence. With an argument taking place, the passenger threatening to get out of the vehicle, and a physical altercation between them, a responsible driver would have slowed up immediately and pulled to the side of the road. It was negligent and dangerous for the appellant to accelerate in those circumstances and it is

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not at all surprising that the wheels went into the gravel and the car went out of control.

114 His Honour properly considered the hypothesis that had been put up by the appellant. It was for the appellant to choose the hypothesis and it had to fit with the facts. To get the keys onto the road verge on the passenger's side in the way that the appellant contended, it was necessary to explain how they went out of the vehicle. The appellant mounted a case to show that the window was down and that the respondent threw the keys out of the window; but his Honour made the unchallenged finding, based on evidence of an independent expert, that the window was up. It is, of course, strange that the keys were found on the road verge, but other hypotheses may be advanced. There was no obligation on the respondent or his Honour to come up with a counter hypothesis but it is not difficult to do so. For example, it is not fanciful that one of the many people at the scene removed the keys from the ignition as a safety measure. If they were placed on a vehicle bonnet or tray of a truck, they could have fallen off away from the accident site. (At least, this example is not more fanciful than a hypothesis that the respondent threw the keys out of her window when the unchallenged finding is that the window was closed.) The circumstances after the accident were doubtless confused. I note that Constable Frost found the spare keys but neither Mr Newton nor Mr Michel knew this because they had to bounce the car to line it up with the tray rather than using the keys to release the wheel lock. This indicates how confusion and lack of communication can occur after an accident.

115 This is a case where both parties led all the evidence they wished to lead. No evidence was wrongly excluded and this is not a case where the Court should be "reluctantly driven" (see Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431) to order a retrial. To order a retrial is always a "deplorable" outcome. See The Waterways Authority v Fitzgibbon (supra) at [36].

116 In my opinion, an appeal court should not be overly critical of a Judge's reasons when the Judge has clearly appreciated all of the issues in the case and has referred to the evidence and decided crucial issues. The fact that his Honour did not mention the respondent's statement about what she said was called out by the appellant immediately after the accident was not in my view a "crucial" finding (see Soulemezis (supra) at 278). It was not evidence "critical" to the case (Mifsud (supra) at 728). It was not critical or crucial because even if the respondent's evidence is ignored save where it agrees with the appellant's evidence, the appellant's

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hypothesis could not be established because of the unchallenged finding that the passenger's side window was closed at the time of the accident. The appellant now wishes to persuade a new Judge that the keys could have been dropped out of the door and not thrown through the window. No error was made which would permit this Court to order a retrial.

117 I would dismiss the appeal.