State of NSW v Nominal Defendant

[2004] NSWCA 328

CITATION:	State of NSW v Nominal Defendant [2004] NSWCA 328
HEARING DATE(S):	28 July 2004
JUDGMENT DATE:	17 September 2004
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Stein AJA at 73
DECISION:	Appeal allowed with costs.
CATCHWORDS:	LIABILITY: Motor accident - The appellant was the employer of a school teacher who was injured in a motor vehicle accident on her journey to work - whether the vehicle causing the accident was an unidentified government bus - claim for recovery sought from Nominal Defendant of workers' compensation paid by employer - whether indemnity claim against Nominal Defendant covered by s34 of the Motor Accidents Compensation Act 1999 - whether substitution of a contrary determination warranted on a matter of inference from fact.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW) s34; s39 Workers Compensation Act 1987 (NSW) s151Z(1)(d)
CASES CITED:	Andrews v the Nominal Defendant (1965) 65 SR(NSW) 85 Baldry v Jackson (1976) 2 NSWLR 415 Fox v Percy (2003) 197 ALR 201 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
PARTIES :	STATE OF NEW SOUTH WALES (Appellant) NOMINAL DEFENDANT (Respondent)
FILE NUMBER(S):	CA 40980/03
COUNSEL:	L KING, SC/ M J JENKINS (Appellant) K P REWELL, SC/ M G GILBERT (Respondent)
SOLICITORS:	Rankin & Nathan (Appellant) Thomas Laycock (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8383/00
LOWER COURT JUDICIAL OFFICER :	English DCJ

CA 40980/03
DC 8383/00

BEAZLEY JA
SANTOW JA
STEIN AJA

17 SEPTEMBER 2004

STATE OF NEW SOUTH WALES v NOMINAL DEFENDANT

Judgment

1 BEAZLEY JA: I agree with Santow JA.

2 SANTOW JA:

INTRODUCTION
The State of New South Wales as appellant employed Ms Peterson, a school teacher, who was injured in a motor accident on her journey to work. The appellant before the trial judge English DCJ, unsuccessfully sought indemnity from the Nominal Defendant in respect of workers’ compensation payments it had made.

3 For recovery to be available at all, the appellant is first required to satisfy s151Z(1)(d) of the Workers Compensation Act 1987 (NSW) (“WCA Act”). It is in the following terms:

“(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

…

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),”

4 In addition, to recover against the Nominal Defendant, the appellant must satisfy s34 of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”). It is in the following terms:

“34 Claim against Nominal Defendant where vehicle not identified

(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant.

(2) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.

(3) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.”

5 Whether such an indemnity claim is covered at all by s34 of the MAC Act, by reason of being a claim for recovery of workers’ compensation rather than, directly, a claim for damages for personal injury, is not before us. It would be a live issue were a re-trial to be ordered.

6 Essentially this appeal seeks to identify appellable error by the trial judge when she found that the injury suffered by Ms Peterson was not caused in circumstances creating a liability in the Nominal Defendant “to pay damages”. In particular the appellant challenges the determination of the trial judge that the accident was not shown to have been caused by “the fault of the owner or driver of a motor vehicle”. That vehicle, according to the appellant, was an unidentified government bus. The trial judge concluded that she was not satisfied that the driver of that bus had been negligent so did not consider any other issue in order to deny indemnity.

7 The claimed circumstances of the accident were essentially that Ms Peterson was driving her car in the centre of three lanes. She claimed that she was forced to move across into the first lane in order to avoid a Government bus which had veered towards her from the third lane, with the result that Ms Peterson locked bumper-bars with a car in the first lane of the three lane highway. The trial judge concluded adversely to the appellant on credit and particularly as regards there being any Government bus veering into or towards the second lane. The trial judge did not believe the impact was as severe as the appellant claimed and was sceptical as to the seriousness of her injuries.

8 To establish appellable error by the trial judge, the appellant seeks to identify either incontrovertible facts or uncontested testimony demonstrating that the trial judge’s conclusions were erroneous, or that the cumulative effect of errors said to have been made by the trial judge rendered the appellant’s conclusion “glaringly improbable” or “contrary to compelling inferences”; see Fox v Percy (2003) 197 ALR 201 at 209-10 per Gleeson CJ, Gummow and Kirby JJ. Alternatively, the appellant seeks to show that the trial judge failed overall to give sufficient attention to all of the evidence of the case and did not therefore determine the defendant’s case on the real strength that the body of evidence presented: State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306.

9 The appellant also relies upon a Notice of Contention. It essentially contends that s34(1) of the Motor Accidents Compensation Act 1999 was not satisfied, on the basis that this was not a case where “the identity of the vehicle cannot after due inquiry and search be established”. This was because, at trial, the identity of the bus was known to be a government bus, though its registration details were not known.

SALIENT FACTS

10 The salient facts are not disputed, save as to whether a Government bus did veer into Ms Peterson’s middle lane causing her to have the accident, and also as to the severity of the impact. I shall set out the circumstances below, identifying the findings of the trial judge and indicating those that are disputed.

11 On 28 February 1997, when travelling to her place of work, Ms Peterson, “the worker”, was involved in a motor vehicle accident and received injuries. Workers’ compensation was paid on behalf of her employer, the Department of Education, for her or for her benefit. The relevance of what follows is that s151Z(1)(d) provides for indemnity where the State which paid the compensation can establish that the person from whom indemnity is claimed, is “liable to pay those damages”. Section 34 of the MAC Act then requires, for the indemnity to be claimable against the Nominal Defendant, that the damages are in respect of injury to Ms Peterson “caused by the fault of the owner or driver of a motor vehicle …” in “its use or operation on a road in New South Wales”.

12 The accident occurred on Victoria Road at North Ryde. The appellant’s case is that there was a Government bus following behind in the outside lane (lane 3). It swerved into the middle lane in which “the worker” (Ms Peterson) was driving her vehicle (lane 2) so causing the worker to swerve into the kerbside lane (lane 1) resulting in a collision with a vehicle driven by Mr Pike, in lane 1. The worker was indeed the appellant’s primary witness on liability though Mr Pike also gave evidence.

13 The worker’s evidence was taken on commission on 26 July 2002 at Newcastle, pursuant to an order of the court below. A transcript of the worker’s evidence was tendered on the hearing (Black, 1). The trial judge therefore did not actually see the worker give evidence and to that extent did not have the customary advantage of seeing the relevant witness. All other witnesses, including Mr Pike, were seen by the trial judge.

14 Ms Peterson was interviewed by police on the day the accident occurred. When asked to describe the accident, Ms Peterson said:

“About 7.10 am on 28 February 1997, I was driving my vehicle QJN 586 west on Victoria Road, at approximately 50 km/h. I came through the new section of road which used to be straight, but is now curved, and a bus which was in lane 3 of 3 lanes, came across partially into lane 2, the lane I was travelling in. I swerved to avoid the bus and collided with another car that was in lane 1. The bus didn’t stop. I didn’t get the registered number. All I remember was the bus was a Government Bus.” (Blue, 25, handwritten statement to police)

15 I have earlier mentioned that Ms Peterson gave evidence on commission on 26 July 2002 at Newcastle. She had previously obtained a medical certificate, to the effect that she was medically unfit to attend court in Sydney, when the matter was first listed for hearing on 25 September 2001; this was the subject of some adverse comment by the trial judge in her judgment at Red, 14. The trial judge said:

“… to obtain that certificate [she] was required to travel to Bankstown a few days prior to her required attending in Sydney and at the time she was due to give evidence she was seen to be able to attend her local shops, drive her car and assist a friend. Her evidence as to what ailment prevented her from attending court in Sydney was, I find, less than satisfactory. The medical certificate referred to her as suffering from stress and anxiety, yet when she was asked in cross-examination why she was unable to attend court she stated ‘because I was not well at the time’. When asked ‘what was wrong with you?’ she replied ‘the same problem … I had a pending hysterectomy’. The certificate was not issued for any problem relating to her neck or left shoulder [the area of damage that she identified after the accident]. No evidence had been given by her of any gynaecological problems which would have prevented her from giving evidence. Clearly she was able to drive her car, socialise and assist a friend to move house.”

16 This was but one of several matters upon which the trial judge drew adverse inferences or formed an adverse view concerning the credibility of Ms Peterson, some of which, as I explain, were unjustified but others were not.

17 Returning to the accident, relevantly it occurred on Friday on a busy highway at a peak morning period. That has a relevance as to the sighting of the Government bus and the probability that the actual bus seen earlier at Gladesville was the same Government bus as was seen by Mr Pike some 30 seconds after the accident, though the latter time estimate would be more accurately described as a guesstimate. Thus when Senior Constable Thorpe contacted the State Transit Authority to see if she could determine what buses travelled on Victoria Road at that time in the morning, though the accident had occurred quite a few years ago, they naturally enough told her “it was impossible to determine which bus it was as there were numerous buses travelling along Victoria Road, Ryde at that time in the morning”; Black, 79J-P.

18 The other driver, Mr Pike, gave evidence that he had seen a bus before the incident, even before getting to Gladesville which was some distance from the scene of the accident in Ryde (Black, 91B). He indicated agreement with the proposition that “at no time did you see that bus drive into the middle lane or to lane No. 1 in your lane ‘Did you’ ” (Black, 91U). He did so, having earlier acknowledged that he had seen such a bus in the far right lane, though this would have been his sighting earlier at Gladesville.

19 I consider it significant that Mr Pike stated that after the incident he did remember seeing a bus “travelling in No. 3 and it would have been at least 100 metres in front of us”; Black, 90W. He then, in cross-examination, recounted what had happened immediately after the accident, namely that he “wondered what had happened” (Black, 92N), followed by “a period of realisation as to what had happened and then a period to make sure that [his] car was safe and not going to cause problems with other traffic users” (Black, 92P) and then “an appreciation for what to do next” as to driving away or not (Black, 92R). Then the following question and answer ensued:

“Q. And after all of those things went through your head, you had an opportunity to look up and it was at that stage that you saw the bus in lane number three further down the road, is that correct?

A. That’s correct yes.

Q. As to whether or not that bus was beside Miss Peterson moments before she collided with your car, I take it from your evidence that you just don’t know because you weren’t looking, you were looking in your own lane, correct?

A. I was concentrating on my own lane, yes.” (Black, 92T-X). [emphasis added]

20 Senior Constable Thorpe, when questioned about Mr Pike’s version of events gave the following answer:

“Q. So that there was nothing in Mr Pike’s version of events which would have permitted you to conclude that there was a government bus involved in the accident in any way was there?

A. No that’s not correct. Just because he didn’t see it doesn’t mean it’s not there.

Q. No but it may mean it’s not there may it not?

A. Yes it could mean anything.” (Black, 81K-N)

21 Senior Constable Thorpe confirmed that she was not able to obtain any information about the existence of a bus from Mr Pike (Black, 81S).

22 Turning now to Ms Peterson’s evidence, as taken on commission, as the passage below indicates, her evidence was that about half the bus, about a car length, veered across into her lane, coming from the right-hand side lane, having “veered across into the centre lane and then just continued back into the right-hand side”, causing her to swerve her car into the left, the bus travelling faster than she at her estimated speed of 50 km/h. I quote the passage below since clearly it contributed, in terms of presentation of the evidence, to the trial judge’s conclusion that ”I find it extraordinary that … Mr Pike would not have noticed the presence of a bus if it had manoeuvred to the extent evidenced by the worker. I find it would have had to have come within metres of his vehicle” (Red, 15U-W). The quoted evidence follows:

“Right. Now, as you were driving along Victoria Road in this area, what happened?---I was travelling along in the centre lane and a bus passing me on my right – on the right hand side, my driver’s side – suddenly, when we were negotiating the bend, swerved into the centre lane.

Right. Now, as you approached the bend?---Mm.

Was the bus visible to you in the right hand lane?---As I approached the bend?

Yes?---No, just on – on negotiating the corner, the bus passed me.

All right?---The bus passed me and veered into my – into the centre lane.

As you entered into the bend, was the bus beside you, or in front of you, or behind you, or some other place on Victoria Road?---Excuse me?

As you entered the bend was the bus, in front of you, beside you, or behind you, or some other place on Victoria road?---The bus was on my left hand side starting to overtake me.

Sorry, as you were – as you were driving in the middle lane, was the bus on which side of you?---On my right hand side.

You said left hand side, a minute ago?---Oh, on my right.

On your right, thank you. And, as you started into the bend on the right hand side, was the bus – as you started into the bend, was the bus visible to you on your right, or was the bus behind you?---Yes, it was visible to me on my right – as I started into the bend, it was.

As you proceeded into the bend, what happened in relation to the bus with reference to your car?---The bus - - -

Did the bus move forward or drop back or stay level with you, or do something else?---No, the bus moved forward and veered across into the middle lane forcing me - - -

Well, just – we’ll just take it step by step?---All right.

The bus moved forward?---And veered across into the centre lane.

Right. When the bus veered across into the centre lane, was the whole of the bus past the front of your car at that stage, or not?---About half of the bus – about a car – about a car length.

And, when you say the bus veered across into your lane, how much of the left hand side of the bus crossed over the lane line into your lane?---About half of the bus.

Before the bus veered over, did the bus show its indicator or give any sign or warning?---No, not at all.

In relation to your car and the bus, did the bus, in its lane, overtake your car?---The bus veered into the centre lane and carried on and then, straightened up and went back into the left lane and – because it wasn’t negotiating to go into the centre lane, at all. It veered across into the centre lane and then just continued back into the right hand side.

All right. Can I ask you this, please? The bus veered into your lane?---Yes?

What did the bus then do?---Veered across back onto the – it veered into my lane and then it veered across after – you know, after negotiating – coming into my lane, it veered across back into its own lane.

Into its own lane?---Into its own lane, yes.

Right. Is that the right hand lane in relation to your middle - - -?---The right hand lane, yes.

All right?---On my right side

A moment ago, when you explained that, you said that the bus went into the left hand lane. Is that a mistake?---Yes, that was a mistake. Yes, I was in the centre lane. The bus was on my passenger side which was the right hand side.

Was the bus, in the manoeuvre of coming up on your right and then veering into your lane in the way you’ve described, travelling faster than you car?---Oh, yes, it was. The bus was actually passing – passing by, overtaking me.

Overtaking. Was it travelling just a little bit faster than your car?---Yes, it was.

Or was it travelling a lot faster than your car?---A lot faster than my car.

What, if anything, do you recall in relation to the colour scheme of the bus?---It was a white and a blue bus.

Did you notice any other markings on the bus?---No.

In the eight months prior to this accident, had you seen other buses of the same kind driving on Victoria Road?---Yes, I did, the same coloured white and blue buses, yes.

Okay. Was it the white and blue of the Government buses that you see from time to time?---I would say so, yes, white and blue.

After the bus veered into your lane and then back into the right hand lane, did the bus driver stop?---No, the bus driver continued driving – he was unaware of what happened.

……….

Was there a collision between your car and the bus?---No, no.

When the bus driver veered into your lane, what was the distance at that point between your car and the bus – between your car and the bus?---When it veered into my lane?

Yes?---About a car length.” (Black, 13E-15S)

23 In a subsequent passage of cross-examination, Ms Peterson said that “the bus came in sharply”; Black, 16H.

24 It will be apparent from the above quoted passage of cross-examination that the account shows that Ms Peterson had some confusion between her left and right. However, if it contributed to any adverse inference on the part of the trial judge that would be unfair, since one may readily find people who confuse left and right. But that confusion did not emerge as in any way an emphasised part of the trial judge’s reasoning.

25 However, the trial judge did reject or doubt the credit of Ms Peterson, as to the following:

(a) the existence of the bus (Red, 15Q-W);

(b) the speed of the worker’s vehicle and Mr Pike’s vehicle at the time of the accident (Red, 16C-D);

(c) the location of the accident and the relevant section of road (Red, 14E-F, 14W-15B and 16D);

(d) how the accident happened (Red, 13T-W); and

(e) the severity of the collision (Red, 16G).

26 The appellant argues as to each of these matters that the trial judge was in error as to her understanding of the evidence, or acted on her perception of evidence which did not exist. As to each of these matters the appellant submits that the trial judge acted on evidence which was inconsistent with facts incontrovertibly established by the evidence; Fox v Percy (supra). As to each of these matters it is contended that the trial judge failed to give sufficient attention to all of the evidence of the case and did not determine the appellant’s case on the real strength of the body of evidence presented; State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (supra).

27 As to the presence of the bus, the appellant relies upon the following submissions which I quote in full:

“(a) Her Honour concluded that she could not be satisfied on the balance of probabilities that there was a government bus which veered into the worker's lane (Red AB 15 Q-R). Her Honour came to that conclusion acting on the evidence of Mr Pike (Red AB 15 R-S). Her Honour represented that it was the evidence of Mr Pike that the bus was 100 metres ahead at the time the incident happened (Red AB 15 S-T). It was fundamental to Her Honour's reasoning in rejecting the worker's explanation for the accident, as to the presence of the bus, that Mr Pike put the bus 100 metres ahead "at the time of the incident". Her Honour was in error in her representation of Mr Pike's evidence. Mr Pike said that he saw the bus in lane 3 before the collision (Black AB 91 B-C, 91 R-T, and 91 V-X); Mr Pike said that he did not see a bus at the time of the accident (Black AB 91 F-G) but was focusing upon the road in lane I in case there were any unexpected cars which had stopped or had slowed down in his kerb side lane (Black AB 92 H-L); and that after the accident happened there was an initial period where he wondered what had happened, then a period of realisation as to what had happened, then a period to make sure that his car was safe and not going to cause problems for other traffic and then an appreciation as to what to do next as to whether he could drive his car away and where he should drive it to and then after these matters he saw the bus in lane 3 further down the road (Black AB 92 M-U). The evidence of Mr Pike put a bus in lane 3 before the accident leading up to the time of the accident and about 100 metres ahead a little time (about 30 seconds, Black AB 90 Y) after the accident. Mr Pike did not put the bus ahead at the time of the incident.

(b) Her Honour concluded that it would be extraordinary if Mr Pike had not noticed the presence of the bus (Red AB 15 U-V). Mr Pike explained in his evidence that he was concentrating on his own lane concerned to ensure, as it was the kerb side lane, that it was clear and did not know whether or not the bus was beside the worker moments before the collision between the worker's and Mr Pike's vehicles (Black AB 92 B-I, and 92 V-X).

(c) The evidence of the worker that a bus had swerved into her lane causing her to swerve and collide with Mr Pike's vehicle was an account contemporaneously made by the worker, firstly, to Mr Pike immediately following the accident (Black AB 93 C-F); secondly, within a short time after the accident on the morning of the accident to the police (Ex. G, Blue AB 24); and thirdly, in the worker's compensation claim form for "injury on the journey" (Ex. D, Blue AB 10) and the worker's compensation claim form (Ex. E, Blue AB 12). Her Honour did not refer to and, by implication, overlooked the contemporaneous accounts on the part of the worker as to the presence of the bus as the cause for the accident.” [emphasis added]

28 What the trial judge actually said about Mr Pike’s evidence was this: “he was prepared to concede when giving evidence that there was a bus, but it [was] 100 metres ahead at the time the accident happened and he confirmed his contemporaneous statement that he did not see a bus in the position as described by the worker at the time of the incident” (Red, 15S). The trial judge goes on to state that “I find it extraordinary that … Mr Pike would not have noticed the presence of a bus if it had manoeuvred to the extent evidenced by the worker. I find it would have come within metres of his vehicle” (Red, 15V). Undoubtedly this summation of his evidence suffered from compression. However, while first the statement by the trial judge omits the fact that Mr Pike had seen a bus back at Gladesville, a long distance from Ryde, that of itself was hardly of great weight given the number of Government buses likely to be around at that time.

29 Second, and more materially, the trial judge talks about the bus being “100 metres ahead at the time the accident happened”. A more accurate statement of his evidence was that when the accident happened there followed this sequence of events preceding sight of the bus by Mr Pike:

(a) an initial period when he wondered what had happened, then

(b) appeared a realisation as to what had happened and a period to make sure that his car was safe and not going to cause problems for other traffic users, and

(c) an appreciation for what to do next in terms of driving away or not, and where to,

All of this happened in a matter of seconds so that accepting the car speeds were 50 km/h and the bus in excess of that, the bus could well have gone ahead by the estimated 100 metres and still have been alongside Ms Peterson’s car at the time of the accident. Moreover, Mr Pike conceded that he just didn’t know whether or not there was a bus beside Ms Peterson whilst Senior Constable Thorpe said that “just because he didn’t see it doesn’t mean it’s not there”.

30 To this, the respondent places great emphasis not only on other discrepancies in the account by Ms Peterson to which I will return, but in particular on the notion that Mr Pike would be unaware were a bus as to half its length to veer into the lane adjoining him in front of Ms Peterson, doing so sharply and at speed and so that the bus must have been within five metres of him.

31 One may derive from this that there was thus no “incontrovertible fact or uncontested testimony” demonstrating in clinching fashion error by the trial judge in her inference that Mr Pike must have been so aware, and that is so though it be the case that her conclusion on that score is itself not incontrovertible. It must be remembered that the onus lies upon the appellant to demonstrate the incontrovertibility in question.

32 This still leaves the possibility of contrary facts falling short of being “incontrovertible”, but nonetheless cumulatively pointing to the trial judge’s conclusion being “glaringly improbable” or “contrary to compelling inferences”. The cases where contrary facts render the trial judge’s conclusion “glaringly improbable” or “contrary to compelling inferences” tend to shade into what I would call the third possibility of appellate intervention. This relies on a cumulative failure, where it can be shown that overall, the trial judge failed to give sufficient attention to all of the evidence of the case and did not determine the appellant’s case on the real strength that the body of evidence presented: State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq). To ascertain the strength of that contention made by the appellant it is necessary to consider the further matters to which I have earlier made reference, where the trial judge either rejected or doubted the credit of the worker.

33 I turn therefore to the next of these, namely the speed of the worker’s vehicle and Mr Pike’s vehicle at the time of the accident. The trial judge found that Mr Pike’s evidence was that “the speed at which they were travelling was only 30 kph and not 50kph as alleged by the worker”; Red, 16C. He then said, “that I find to be more consistent with vehicles travelling through vicious curves” in the roadway and as alleged by the worker when giving evidence before the Commissioner; Red, 16D.

34 To the extent that the trial judge relied upon that combination of findings, the trial judge was, with respect, in error.

35 Thus Ms Peterson said that she was travelling between 50 kph and 60 kph approximately at the time of the accident (Black, 12V-W). Mr Pike said in his statement to the police on the day of the accident that the vehicles were travelling at 50 kph (Blue, 25). Moreover, Mr Pike accepted in his evidence, in cross-examination, that his statement to the police was more accurate than his recollection at the time of the hearing and that the speed of the cars was likely to have been 50 kph or thereabouts (Black, 93W-Y and 94F-G).

36 To this, the respondent attempted to argue that the error was not material to the trial judge’s reasoning. However, it did underlie the trial judge’s reference to the cause of the accident being vehicles travelling through “vicious curves” in the roadway, a description which finds no basis in the evidence whatsoever. Thus Mr Pike described the road as having “curves” and “a sort of two sort of s-bends” (Black, 87U and X-Y). Senior Constable Thorpe, having a familiarity with the road, described the curves as “moderate” and “not extremely sharp” (Black, 84H-J).

37 Indeed the presence of bends, albeit moderate, is consistent with the bus failing to negotiate the bends accurately and appearing to swerve from lane 3 into lane 2 when negotiating the bends, as indeed Ms Peterson’s account at Black, 13E-G suggests, where she says “suddenly when we were negotiating the bend, [the bus] swerved into the centre lane”.

38 There is no mention in the trial judge’s reasoning of that possibility but rather an overstated reference to “vicious curves” as the reason for Ms Peterson, who had travelled the road for some 8 months, failing to negotiate those curves and thus having the accident.

39 Moreover, the trial judge was critical of Ms Peterson as regards that aspect of the evidence in the following passage:

“She was asked how long the curves had been present and she said they had been present prior to her accident but in her statement to police she had stated ‘I came through the new section of the road which used to be straight but is now curved ’. She could not satisfactorily explain what she meant. She denied that there were road works taking place at the time of her accident and nor would she accept that the roadway surface was quite rough at the time.” (Red, 8U-W)

40 This criticism is not really fair. There was no evidence at all that the roadway surface was quite rough at the time nor evidence of repairs. What there had been was an earlier reconstruction so that the road which was originally straight had been changed with a new section with “s-bends”, as corroborated by Senior Constable Thorpe (Black, 84B-G) and Mr Pike (Black, 87U-Y). The trial judge goes on to say “she would not concede that the roadworks created what was described as a ‘vicious s-bend’ “ (Red, 9B). As I have already explained there is simply no evidence of there being then in place roadworks or any evidence of a “vicious s-bend”. Her unwillingness to concede this, relied on against her by the trial judge, was wholly justified on her part.

41 Finally the trial judge states, evidently unfavourably, that “she would not accept that the accident was caused due to her unfamiliarity with the road at the time”. As I earlier indicated, she had been driving on that road for 8 months so it was not to be expected that she would accept that the accident was so caused.

42 Finally, the trial judge described the evidence of Ms Peterson as to the location of the accident as unsatisfactory, upon the basis that the new section of road appeared to have recently undergone repairs and that Ms Peterson resiled from that description when giving evidence and denied that the road had undergone repairs (Red, 14U-V).

43 Again this was less than fair. The disinterested evidence of Senior Constable Thorpe corroborating Ms Peterson, was that the accident did not involve roadworks (Black, 86H-J).

44 I have earlier referred to the criticism that Ms Peterson had given more than one version as to how the accident occurred; see Red, 13T. In her evidence Ms Peterson said that the bus veered from the right hand lane into the centre lane causing her to swerve into the kerbside lane (Black, 13E-K, 14A-M, 15U-V and 16F). In a statement to the police (Blue, 25) Ms Peterson said that she swerved to the right to avoid the bus and collided with another vehicle that was in lane 1.

45 I agree with the appellant’s submission that self-evidently, Ms Peterson in lane 2 could not have swerved to the right so as to collide with the vehicle driven by Mr Pike in lane 1. Indeed in her evidence (Black, 39R-T) Ms Peterson explained that this was a mistake and that she swerved to the left. Ms Peterson was never cross-examined to the effect that she swerved to the right or that there was no mistake. Rather Ms Peterson was cross-examined on the basis that she had swerved to the left (Black, 49G-J). The evidence of Mr Pike, that he was driving in lane 1 when Ms Peterson swerved from lane 2 into lane 1 resulting in the collision, corroborates Ms Peterson’s evidence that she swerved to the left and that she had been mistaken when she described the direction as being to the right.

46 Thus I would not consider it fair to cite that confusion between left and right as materially undermining her account or constituting a different version of how the accident came about.

47 The final matter relates to the severity of the collision. The trial judge concluded that there was not a severe impact at the time of the collision and that Ms Peterson’s evidence was unreliable when she said that she had been jolted as a result of the collision; Red, 16E-F. The evidence however was that both vehicles were travelling at about 50 km/h at the time of the collision. However, in answer to a question “when the vehicles came together, with what force did they come together”, he replied “not a great deal of force, just a minor touch” (Black, 89O-P). He had earlier described the impact as “a minor crunch”; Red, 89L.

48 Mr Pike said the collision involved the front fenders of both vehicles and the front passenger door of Ms Peterson’s vehicle (Black, 94R-U). Mr Pike said that after the cars collided they did become wedged together (Black, 94V-W).

49 The difference between Mr Pike’s evidence and that of Ms Peterson could therefore be fairly described as simply differing impressions of events that occurred in a split second. Ms Peterson relied upon the severity of the collision as causing her to feel herself “jolted” at the time of the collision; Black, 17H. Again, I would not describe this difference in viewpoint between Mr Pike and Ms Peterson as undermining her assertion on that matter.

50 Summing up, there is evidence on the part of Ms Peterson which establishes

(a) The presence of the bus at the time of the incident and which swerved from lane 3 into Ms Peterson's lane, lane 2 (Black, 13E-G, 13K-L, 15A-B, 15H-I and 15K-L);

(b) The collision between Ms Peterson's vehicle and Mr Pike's vehicle caused by the driving of the bus (Black, 15U-V and 16D-H); and

(c) The contemporaneous account given by Ms Peterson to the police following the accident on the day of the accident that the bus veered into Ms Peterson's lane causing the accident (Blue, 25), her giving such account being corroborated by Senior Constable Thorpe (Black, 78P-R, and 79A-C).

51 There is evidence on the part of Mr Pike which corroborates the evidence of Ms Peterson as to:

(a) The presence of the bus proximate to the time of the accident (Black, 91Q-R, 91V-W and 92S-U).

(b) The presence of the bus in the right hand lane, lane 3 (Black, 90V-W, 91R-T, and 92S-V).

(c) That Ms Peterson veered to the left (Black, 89D-E, 95Q-T).

(d) A collision between the vehicle driven by Mr Pike and the vehicle driven by Ms Peterson (Black, 95T-W) albeit differing as to severity.

(e) The statement by Ms Peterson to Mr Pike immediately following the accident that the bus veered into Ms Peterson's lane from the right land lane (Black, 93C-D).

(f) The statement by Ms Peterson to Mr Pike immediately following the accident that the bus in veering into Ms Peterson's lane caused Ms Peterson to veer to the left so as to result in the accident (Black, 93 E-J).

52 That evidence, when weighed against matters relied upon in error by the trial judge in order to explain the accident by the erroneous reference to vicious curves and repairs in the road, to my mind do demonstrate that the trial judge either did not have regard to, or did not accurately have regard to, the evidence of Senior Constable Thorpe, Mr Pike and Ms Peterson. What remains is the emphatic weight placed by the trial judge on the fact that Mr Pike gave evidence that he had no awareness of the bus veering across, which the respondent pressed upon this court as being decisive excepting that there were these other errors. However, as against that supposed decisiveness is Senior Constable Thorpe’s entirely plausible reaction to Mr Pike’s version of events, namely that “just because he didn’t see [the bus] doesn’t mean it’s not there”. This was in circumstances where Mr Pike himself indicated that he was concentrating on his own lane, thus he just didn’t know, because he wasn’t looking as to the presence or otherwise of the bus; Black, 92V.

53 All that is then left if one removes the supposedly clinching matter of Mr Pike’s unawareness of the bus is the trial judge’s adverse view of Ms Peterson. That was by reason first of her failure to attend court though she appeared well enough in video evidence and well enough a week earlier to attend Sydney for a doctor’s certificate, second, her exaggeration of her symptoms as determined after viewing the video evidence and, third, the other matters which were emphasised by the trial judge as affecting her credibility, summed up in the reference to vicious curves and the observation, unfair as I have said, that “the worker has given various versions of how the accident came about and the exact location”. As to location, there was no discrepancy between the location of the accident at the intersection of Devlin Street and Victoria Road when completing the relevant claim forms, and Ms Peterson’s evidence on commission; see the claim form (Blue, 11S-W) and the diagram on page 2 of that exhibit where the place of the accident is shown as after the intersection and to the west of it. Indeed Mr Pike put the accident in the same place.

54 In those circumstances, and where the trial judge did not have the advantage of observing the witness’ demeanour, I consider that the trial judge, with respect, did fail to give sufficient attention to all of the evidence of the case and did not determine the appellant’s case on the real strength of the body of evidence presented. That suffices in an exceptional case such as this for an appellate court to substitute its own conclusion, more especially as this is a conclusion essentially by way of inference from the circumstances and evidence presented.

Conclusion

55 I would conclude that this case is one which, exceptionally, warrants the substitution of a contrary determination on a matter of inference from fact to that reached by the trial judge. I would conclude that the State is liable to pay the relevant damages by reason of the negligence of the bus driver, resulting in injury to Ms Peterson caused by the fault of that driver in the use or operation of the vehicle, being the bus, on a road in New South Wales, being the place of the accident.

Notice of Contention

56 That still leaves however the Notice of Contention. It puts in issue whether it could be said that the identity of the vehicle can be established, by reason of the fact that the vehicle was identified as a Government bus, though without any identification of its registration number. Thus the question is whether in such a case it can be said that the “identity of the vehicle cannot after due inquiry and search, be established”.

57 The respondent contends that having identified the bus as a “New South Wales Government bus” the identity of the bus was so established for the purposes of s34 of the MAC Act.

58 In her evidence in chief in these proceedings, Ms Peterson was asked the following questions concerning the description of the bus allegedly involved in the accident on 28 February 1997 (Black, 15E-K):

“What, if anything, do you recall in relation to the colour scheme of the bus?---It was a white and a blue bus.

Did you notice any other markings on the bus?---No.

In the eight months prior to this accident, had you seen other buses of the same kind driving on Victoria Road?---Yes, I did, the same coloured white and blue buses, yes.

Okay. Was it the white and blue of the Government buses that you see from time to time?---I would say so, yes, white and blue.”

59 To this should be added what Ms Peterson said in cross-examination at Black, 41B-W:

“Now, the bus was of the usual government Bus livery. Is that correct?---Yes.

Of course, you would have been very familiar with what a Government Bus looked like at that time?---Well, to me the colour was white and blue.

Well, not only was the colour white and blue, but you drove on Victoria Road?---Yes.

Every day?---Exactly, yes.

And, you say you saw government Buses every day?---Yes.

And, I suppose, from time to time, you were stopped at lights and could read on the side of the bus that it was a government Bus?---Yes.

You’d seen the bus numbers and all the other identification which established to you each day, that the buses you were seeing was a New South Wales Government Bus?---Yes.

And – and, the bus you saw on this particular day, in lane three, which you say moved in front of you, was identical, a government Bus?---Identical, yes.

And, you’ve never had any doubt about the fact that it was a Government Bus?---Well, to my best of my knowledge, I – I thought that it would be, like, you know, a Government Bus.

Well, you’ve never had any doubt about it, have you – never?---Not really.

Indeed, you told the Police Officer on the day of the accident, ‘All I remember, the bus was a Government Bus’. So, you had no doubt about it then, did you?---No, not really.

When the incident was, of course, clearly in your mind?---Well, I just took for granted that a white and blue bus would be a Government Bus.

Well, you recognised it as a Government Bus, didn’t you?---Yes.

A bus with which – or, a design and livery with which you were very familiar?---Yes”

60 I have already referred to Mr Pike’s evidence of seeing a bus some 100 metres ahead, about 30 seconds after the collision occurred, Mr Pike having no doubt that the bus he saw was a “State Government bus” (Black, 15-16).

61 The evidence also established that all State Transit Authority buses were insured by the same compulsory third party insurer as at 28 February 1997.

62 The question is therefore whether, based on this evidence, “the identity” of the vehicle (the bus) has been established within the meaning of the word “identity” in the MAC Act so as to preclude satisfaction of s34.

63 The respondent’s argument is that the provisions of the MAC Act concerning the Nominal Defendant are to be construed having regard to the purpose for which the Nominal Defendant exists. That purpose is to ensure that there will be insurance funds available to the victims of motor accidents in the event that the vehicle at fault is after due enquiry and search unidentified; Andrews v the Nominal Defendant (1965) 65 SR(NSW) 85.

64 The respondent’s argument continues that once it is established that the bus allegedly involved in the present case was owned by the State Transit Authority, and was insured, then the identity of the insurer is established, there being only one such insurer, and the role for which the Nominal Defendant was created is no longer relevant. Accepting that Ms Peterson suffered bodily injuries as a result of the fault of the bus driver, the compulsory third party policy held by the State Transit Authority will respond. It does not matter for that purpose that the particular bus cannot be “identified” by its registration number.

65 One may test it by example. Assume that someone is struck down by a passing car, driven negligently, and he or she identifies the registration number but gets it wrong by one digit. Assume further, that the owner of the car is clearly identified by reason of the marking of it; for example it may be a marked police car or a Government bus. Surely in those circumstances, contends the respondent, one would not contend that the identity of the vehicle cannot be established. One clearly does know the identity of the vehicle in the sense of the owner and it would be quite irrelevant to know the registration number save possibly if there were a different compulsory third party insurer for different parts of a fleet, not the case here.

66 To this the appellant contends that first the evidence does not establish that “the plaintiff or those in its interests including the worker have established the identity of the bus”. However, that could not be disputed that the owner of the bus was established by the appellant, prior to commencement of the proceedings; see the letter written on behalf of the respondent to the appellant’s solicitor on 1 February 2001 in Blue, 161, referring back to the signed statement given by Ms Peterson to Senior Constable Thorpe on 25 February 1997 which stated: “I didn’t get the registered number. All I remember is the bus was a Government bus.” Indeed the appellant’s very explanation for the accident is that it was caused by a Government bus.

67 The appellant then contends that the legislative scheme demonstrates that the Legislature resolved that the point of reference which best promoted the object of the legislative scheme for Nominal Defendants was in the lack of the identification of the relevant vehicle, that identification depending ultimately on the registration number and not merely on knowing the owner.

68 It is contended that the scheme should be capable of practical implementation in its general application. Thus the Legislature did not intend that, in the event, there should be one rule in respect of Government buses or fleet vehicles and another rule for other vehicles. If Government vehicles were to be treated as similar to fleet vehicles, then it cannot be said that all vehicles, though “government” in the broad sense, will necessarily have the one owner (in the sense of being owned by the same arm of Government) or that all vehicles will be insured with the one compulsory third party insurer at any given point in time.

69 Finally, the appellant emphasises that, whether or not a person has a right of action against the Nominal Defendant, or indeed against any entity, the relevant time is the moment immediately proceeding institution of the proceedings when the cause of action must be complete: Baldry v Jackson (1976) 2 NSWLR 415.

70 There is however a short answer to the latter point. The earlier reference to the letter of 1 February 2001 clearly pre-dates the institution of the relevant proceedings. It shows that Ms Peterson had knowledge of the relevant ownership of the bus being that of the Government in the form of the State Transit Authority.

Conclusion

71 In those circumstances, I would conclude that the identity of the relevant vehicle did not meet the description of one which “cannot after due enquiry and search be established”. Thus, the collision having been caused by the fault of the bus driver, the proceedings should have been brought against the State Transit Authority of New South Wales rather than the Nominal Defendant, it having been established that the bus allegedly involved was owned by the State Transit Authority and was insured, with the identity of the insurer being established. I agree with the submissions of the respondent that in those circumstances the role for which the Nominal Defendant was created is no longer relevant. That interpretation is supported by s39 of the MAC Act which operates to permit the Nominal Defendant in turn to recover the amount it has properly paid in satisfaction of a claim relevantly made under s34 of the MAC Act. That emphasises the primacy of identifying the owner and thus supports the interpretation earlier placed upon s34(1).

OVERALL CONCLUSION

72 While I would allow the appeal, a re-trial must necessarily follow but substituting the proper party. The re-trial would proceed on the basis that the appellant has succeeded in establishing liability on the part of the owner of the bus, being the State Transit Authority. However, there remain other issues such as the foreshadowed one of whether an indemnity claim of the present kind is covered at all by s34 of the MAC Act, it being a claim for recovery of workers’ compensation paid rather than, directly, a claim for damages for personal injury. Thus I would propose that the following orders be made.

(1) The appeal be allowed.

(2) The judgment of Her Honour Judge English be set aside;

(3) The matter be remitted to the District Court of New South Wales for a new trial

(4) The respondent pay the appellant’s costs of the appeal.

(5) The respondent pay the appellant’s costs of the proceedings in the District Court.

(6) As regards orders (4) and (5) and for purposes of substituting the proper party, I would stay those orders for fourteen days and so that either party who wishes to do so, may make any submissions in regard to costs. Such submissions should be in writing.

73 STEIN AJA: I agree with Santow JA.

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Last Modified: 09/23/2004