Suvaal v Cessnock City Council

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, KIRBY, CALLINAN AND HEYDON JJ

ANTHONY PETER SUVAAL  APPELLANT

AND

CESSNOCK CITY COUNCIL  RESPONDENT

Suvaal v Cessnock City Council

[2003] HCA 41
6 August 2003
S384/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

G O'L Reynolds SC with D R Conti for the appellant (instructed by McClellands)

D F Jackson QC with D T Miller for the respondent (instructed by Moray & Agnew)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ AND HEYDON J.   The appeal in this unusual case must be dismissed with costs for the reasons given by Callinan J, together with the following reasons.

  2. Despite an ambiguous passage in the primary judge's reasons, it became common ground, at least in argument before the Court of Appeal, that there were no potholes in the intended path of the plaintiff as he travelled along the road, and if he hit potholes, this can only have been because his bicycle moved to the left, perhaps only to a small degree, and encountered potholes at the left hand edge of the road surface.  The plaintiff's case, rejected by the primary judge, was that a motor vehicle forced him to the left.  The primary judge, to the contrary, found that he moved left because of a loss of concentration on his part.  The Council contended that his leftward movement could have been caused by a failure in the integrity of the handlebars in normal use on the road before he ran into the potholes at the left side of the road. 

  3. The case presented numerous difficulties for the plaintiff and for the primary judge.  There was only one eye-witness, the plaintiff, and he was obviously an interested witness.  He was giving evidence at a trial conducted six years after the events in issue.  He gave numerous out-of-court versions of events, some of which were inconsistent with others, and some of which were less complete than was desirable from his point of view, given the nature of the case presented at the trial.  The pain and shock of the accident may well have deleteriously affected his powers of memory and narration in its immediate aftermath.  The continuing pain of the plaintiff's injuries and the medication he was given may well have similarly affected his powers of memory thereafter.  The evidence of numerous other witnesses also was in conflict.  Since the plaintiff was travelling at 25 miles per hour, ie about 40 kilometres per hour, which is more than 11 metres per second, the intervals of time within which the relevant events were happening were extremely small.  If the handlebars failed in normal use on the road without the bicycle striking a pothole first, it might have hit a pothole a metre or two later – one or two tenths of a second later.  This posed a difficulty for the primary judge…

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Details
Case
[2003] HCA 41
Decision Date

CaseChat Overview and Summary

The appellant, Mr Anthony Suvaal, suffered catastrophic injuries, including quadriplegia, in a bicycle accident. He sued Cessnock City Council, alleging negligence. The primary court found in favour of the appellant, but this decision was overturned by the New South Wales Court of Appeal. The case reached the High Court of Australia, with Gleeson CJ, McHugh, Kirby, Callinan, and Heydon JJ presiding.

The central legal issues before the High Court concerned the powers and limitations of an appellate court when reviewing findings of fact made by a trial judge. Specifically, the court had to consider whether the trial judge was entitled to adopt a version of events not advanced or fully tested by either party, and whether doing so constituted procedural unfairness. The court also examined the principles governing an appellate court's ability to disturb findings of fact, particularly those based on the trial judge's impressions of witness credibility and the entirety of the evidence.

The High Court affirmed that while an appellate court should be hesitant to disturb findings of fact, especially those involving credibility, it is not precluded from reaching its own conclusions as to probable facts if those conclusions are open on the evidence and pleadings. The trial judge had rejected the appellant's primary pleaded case that an unidentified vehicle caused the accident. Instead, the judge inferred that the appellant lost concentration, causing him to veer into potholes, which in turn led to his loss of control and subsequent injuries. The High Court found that this alternative explanation was open on the evidence and pleadings, and that the trial judge's reasoning, while perhaps not ideal in its presentation, did not amount to procedural unfairness. The appellate court's reversal of the trial judge's decision was therefore upheld.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Upon one view, there is nothing new to be said concerning the proper approach of appellate courts to their functions[14], especially because the issues have been visited by this Court recently on a number of occasions[15]. Nevertheless, special leave to appeal having been granted, it is necessary once again to embark upon the application of the established rules. Their application is invoked by a party rendered quadriplegic in the incident out of which this litigation arose. Self-evidently, the reversal by the New South Wales Court of Appeal of the judgment at trial in his favour enlarged the tragedy of a profoundly injured person. But it would be impermissible to allow a tragic case, or the natural sympathy engendered by the circumstances, to distort the application of the relevant legal doctrine[16].[14]cf State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 326 [85]; 160 ALR 588 at 614 ("SRA").[15]Most comprehensively in SRA (1999) 73 ALJR 306; 160 ALR 588 and Fox v Percy (2003) 77 ALJR 989; 197 ALR 201.[16]cf Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 386 noted by Master Harrison in Suvaal v Nominal Defendant [2000] NSWSC 1043 at [269].The facts Mr Anthony Suvaal ("the appellant") was injured on 2 February 1993 whilst riding a bicycle on a road near Cessnock in New South Wales, called in that section of its length Quorrobolong Road. The appellant was a cycling enthusiast. He lived in the district. At one stage he had competed professionally as a cyclist. Although by 1993 he was 35 years of age, he was hoping to make a comeback. When injured, he was in training for a circuit that was to commence about two or three months later. He was well familiar with the road and with the bicycle he was riding, which belonged to him. The appellant's particular purpose was to time his speed over a segment of about 15 kilometres of the journey. This comprised a flat portion of the road called the "speed section" reached on the return journey from the town of Heaton to the appellant's home. On the "speed section" the appellant travelled at about 25 miles per hour (about 40 kilometres per hour). The critical events happened when he was about 1.5 kilometres from the end of the "speed section". He was travelling in a northerly direction. In the distance, the road veered to the left. At a point near a house occupied by the Barber family something happened that resulted in the appellant's losing control of the bicycle, veering off the road on the incorrect side and being propelled over the handlebars to land heavily in a nearby gully. As a result of his fall (or the impact of his body on a hard object (tree or boulder)) the appellant's helmet was smashed. His spinal cord was severed by a fracture at the C6-C7 level producing quadriplegia. The appellant was eventually discovered by Mrs Barber when she heard his cries of help. She summoned assistance. Soon two officers of police arrived, namely Senior Constable Campbell and Senior Constable Barber, the latter being Mrs Barber's husband. An ambulance arrived. A helicopter was summoned to take the appellant to hospital. Mrs Barber, the police officers, the ambulance attendants and paramedics travelling with the helicopter gave evidence concerning conversations they had with the appellant about what had happened to him. Senior Constable Campbell prepared a report in a police notebook. This was lost, but its substance was transcribed in a police occurrence pad which survived. Similarly, the ambulance officers and the paramedics immediately recorded reports, as did Dr Stephen Ruff under whose care the appellant came the day after his injury.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HEYDON J HUGH AND KIRBY JJ CALLINAN J
The Council contested that the pothole hypothesis was ever in issue at the trial, except as an incident of the unidentified vehicle hypothesis. It will be necessary to return to that question.The decision of the Master The pleading of the case, its presentation at trial and the appellant's own testimony, make clear that the appellant's essential claim involved an assertion that he was forced off the road by an unidentified overtaking vehicle that brushed or actually touched him: propelling him into potholes to his left. Not only was that the way the appellant himself said the critical events were initiated. He also called a number of witnesses, mostly from his family, to give evidence that that was what he had told them a week or so after the incident. The difficulty for the appellant with the unidentified vehicle hypothesis was that it was inconsistent with the recollection, and recorded reports, of those who had had immediate contact with the appellant after he was injured, most especially Senior Constables Barber and Campbell. After an analysis of the evidence, the Master rejected this first hypothesis[17]:"The preponderance of credible evidence establishes on the balance of probabilities that it was not the presence of a motor vehicle which caused the plaintiff to veer and change the direction of his steering of the bicycle. Nor did the motor vehicle hit or brush against his right thigh or right hand … [I]t is implausible that he did not mention it to any of the people who attended the scene, even when directly asked about the presence of a motor vehicle …It was one week after the accident that the plaintiff is reported to have said that he was hit by a brownish coloured station wagon and that something went past but he could not recall much after that."[17][2000] NSWSC 1043 at [112]-[113]. The Master was not convinced that the appellant was an untruthful witness[18]. However, she did not accept his evidence that a motor vehicle had caused him to leave the road surface. As was later to be observed in the Court of Appeal[19], the Master's reasons do not contain an opinion that there was no motor vehicle. But they "acquitted any motor vehicle, assuming one was there, of any 'involvement' in the accident"[20]. This conclusion inevitably led to the dismissal of the Nominal Defendant from the proceedings. There was no cross-appeal by the appellant against the Master's judgment in favour of the Nominal Defendant. The unidentified vehicle hypothesis is therefore excluded.[18][2000] NSWSC 1043 at [17].[19][2001] NSWCA 428 at [26].[20][2001] NSWCA 428 at [27]. The Master did not trouble long over the wrong side hypothesis. Given such an experienced cyclist, familiar with the road and with his bicycle, her conclusion in this respect was unsurprising. That left the normal riding hypothesis or some other explanation derived from all of the facts in the Master's capacity as the tribunal of fact[21]. [21]cf Williams v Smith (1960) 103 CLR 539 at 545. In the end, the Master accepted part of the appellant's evidence that concerned the causative element of the potholes on the left-hand side of the road. In the absence of an unidentified motor vehicle to explain how he would have strayed from the bitumen surface onto the uneven rough section on the side containing the potholes, the Master inferred a momentary lapse of concentration on the appellant's part. She concluded that "for reasons other than the presence of a motor vehicle, [he] lost concentration when he allowed the steering of the bicycle to put him into the potholes and rough edge of the road"[22]. The critical findings were expressed in these words[23]:"It is my view, and contrary to the [Council's] submissions, that the preponderance of credible evidence establishes on the balance of probabilities that the plaintiff hit potholes which caused a change in the direction of the steering of the plaintiff's bicycle. I also accept that after the plaintiff hit the potholes he went onto the rough edge of the road. In the accounts given by the plaintiff of how the accident occurred he consistently mentioned the loss of control of his bicycle, the handlebars collapsing and the steering giving way. I accept the plaintiff's account that he caused his bicycle to go into potholes or hit patches and the rough edge of the road. His bicycle bounced two or three times. The tar in the potholes may have sunken in but he knows that he hit potholes. The handlebars of his bicycle turned anti-clockwise and at that point he lost control of the steering. The bike went straight across the bitumen onto the right hand side of the road. He was heading towards two trees, he leant his left leg on the frame of the bicycle to steer between two trees. He then fell in the manner he described".[22][2000] NSWSC 1043 at [309].[23][2000] NSWSC 1043 at [167].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HEYDON J, HUGH AND KIRBY JJ, CALLINAN J

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