Tran v Nominal Defendant - [2011] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tran v Nominal Defendant [2011] NSWCA 220
Hearing dates: 18 August 2010
Decision date: 29 July 2011
Before: McColl JA at [1]; Campbell JA at [202]; Sackville AJA at [203]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - negligence - motorcycle accident - whether unidentified vehicle caused plaintiff's accident

APPEAL - appellate review of findings of fact - whether errors in process of fact-finding - where primary judge rejected plaintiff's version of accident and accepted independent witness' account -whether primary judge's findings glaringly improbable or contrary to compelling inference

EVIDENCE - use of police diagram - whether used impermissibly as direct evidence
EVIDENCE - business record - whether diagram drawn by police officer a "business record" - whether admissible to prove the existence of a fact - ss 59(1) and 68, Evidence Act 1995
Legislation Cited: Evidence Act 1995
Motor Accidents Compensation Act 1999
Police Act 1990
Cases Cited: Angel v Hawkesbury City Council [2008] NSWCA 130
Blacktown City Council v Hocking [2008] NSWCA 144
C Van der Lely NV v Bamfords Ltd [1963] RPC 61
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jackson v Lithgow City Council [2010] NSWCA 136
Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Category: Principal judgment
Parties: An Phan Tran - appellant
Nominal Defendant - defendant
Representation: S Campbell SC with M Maxwell for the appellant
R R Bartlett SC for the respondent
Brydens Law Office - appellant
Lee & Lyons - respondent

File Number(s): CA 2009/298576
Publication restriction: No
Decision under appeal

Citation:

Tran v Nominal Defendant [2009] NSWDC 281

Date of Decision:

2009-09-02 00:00:00

Before:

Johnstone DCJ

File Number(s):

DC 779 of 2008

JUDGMENT

BACKGROUND

Statement of the case

[6]

The primary judgement

[11]

Notice of appeal

[15]

THE TRIAL

[17]

The appellant's version of the accident

[18]

The appellant's accounts to medical practitioners

[31]

Mr Reyes

[45]

Mr Swan

[62]

Constable Attard

[80]

SUBMISSIONS

GROUND 1

A. Appellant's overarching submission: error in the process of fact finding

[94]

B. Constable Attard's evidence

[99]

C. The defendant's witnesses had a clear, uninterrupted view of the plaintiff on his motorcycle in the seconds leading up to the accident

Appellant's submissions

[108]

Respondent's submissions

[113]

Consideration

[117]

D. There was no vehicle travelling in the centre lane beside the plaintiff whilst the plaintiff was travelling in the kerbside lane

Appellant's submissions

[121]

Respondent's submissions

[125]

Consideration

[128]

E. The plaintiff was still travelling in the centre lane well past Vale Street

Appellant's submissions

[136]

Respondent's submissions

[142]

Consideration

[145]

F. The plaintiff was travelling in the centre lane immediately prior to him losing control of his motorcycle

Appellant's submissions

[147]

Respondent's submissions

[150]

Consideration

[151]

G. The vehicle travelling in the centre lane in front of the plaintiff remained in the centre lane after the plaintiff lost control of his motorcycle

Appellant's submissions

[154]

Respondent's submissions

[158]

Consideration

[162]

H. The police diagram was consistent with the defendant's version of the accident

Appellant's submissions

[165]

Respondent's submissions

[168]

Consideration

[171]

I. The plaintiff was not cut off

Appellant's submissions

[185]

Respondent's submissions

[187]

Consideration

[188]

Conclusion

[189]

GROUND 2

[190]

GROUND 3

[198]

ORDERS

[202]

JUDGMENT

McColl JA : The appellant, An Phan Tran, claimed damages in the District Court of New South Wales in respect of injuries he sustained in a motorcycle accident on 5 July 2006. He brought proceedings against the respondent, the Nominal Defendant, alleging he was forced off the road by an unidentified black sedan, pursuant to s 34 of the Motor Accidents Compensation Act 1999 (the "MAC Act"). The respondent denied another vehicle was involved in the accident and alleged it occurred because the appellant lost control of his motorcycle. It also alleged he had been guilty of contributory negligence. In the event it was found that another vehicle had been involved, due search and enquiry (s 34A, MAC Act) was conceded.

Johnstone DCJ found that the appellant was not injured as a result of the negligence of the driver of an unidentified vehicle: Tran v Nominal Defendant [2009] NSWDC 281. In the event that he was in error in reaching this conclusion, his Honour also determined the issues of contributory negligence and quantum of damages. As to the former, his Honour found that if the accident had occurred as the appellant alleged, there would have been insufficient time for him to take any meaningful evasive action and, accordingly, he could not be satisfied that the appellant failed to take reasonable care for his own safety. As to the latter, his Honour assessed the damages he would have awarded if liability had been established at $912,620.

The appeal is concerned solely with the primary judge's adverse ruling on liability. In the event he is successful, the appellant asks the Court to set aside the verdict in the respondent's favour and enter a verdict and judgment in his favour in accordance with the damages his Honour provisionally assessed. The respondent accepts that if the appeal succeeds his Honour's provisional determinations should be accepted.

As is apparent there were two competing versions of the accident at trial. The primary judge concluded that the appellant had not discharged his burden of proving that it was more probable that the accident occurred as he alleged. Thus he was in the difficult position described by Griffith CJ in Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 (at 553) as follows:

"If the tribunal of first instance having seen and heard the witnesses comes to a conclusion in favour of the party upon whom the burden of proof does not lie it is almost hopeless to try to induce a Court of Appeal to interfere with that finding unless it has clearly proceeded upon a wrong principle."

In my view, for the reasons which follow, the appellant has not established that the primary judge's decision was glaringly improbable or contrary to compelling inference: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [29]).

BACKGROUND

Statement of the case

The accident occurred at about 10.30 am on the morning of 5 July 2006 on the northern side of Cabramatta Road between its intersections with Vale Street and the Hume Highway, "at a point some 120 metres west of the Hume Highway." At that point the road consisted of four lanes, two travelling in each direction. It was straight. The speed limit was 60 kph. It was a fine day: see primary judgment (at [6]).

The appellant was travelling east along Cabramatta Road, with a view to turning left into the Hume Highway. Approximately 120 metres from the intersection with the Hume Highway, his motorcycle slewed across the road, hit the kerb, then travelled onto the nature strip and collided first with a signpost, then with a power pole. The appellant was thrown into the air and suffered severe injuries upon landing. In the course of its travel towards the power pole, the motorcycle also struck a pedestrian, who was injured.

The primary judge described the appellant's version of events as follows:

"7. The plaintiff had been riding his motorcycle at about 60 kph in an easterly direction along Cabramatta Road towards the Hume Highway, where he was intending to turn left. His version was that whilst travelling in the kerbside lane he was forced off the road when an unidentified black sedan travelling beside him in the adjacent centre lane to his right suddenly and without warning started to move across into his lane, forcing him off the road. His motorcycle went into the kerb and up onto the nature strip where it struck a signpost, then a power pole. He was thrown into the air and upon falling suffered severe injuries.

8. The plaintiff's evidence was that after he first turned left into Cabramatta Road at Hill Street he had been riding east in the centre lane, but subsequently crossed into the kerbside lane, at a point before Vale Street. He then travelled in that lane for some 30 to 40 metres when he became aware of a black car in the lane on his right, going a little bit faster. At a point when the rear wheel of that car was beside him, it suddenly merged into his lane and 'closed him off'. He was left with nowhere to go and he panicked. He said that the episode happened very quickly, in a matter of seconds, and he had no time to brake. The black car did not come into contact with him or his motorcycle, but 'pushed' him, forcing him 'into a manoeuvre', causing him to hit the kerb. In his examination-in-chief he denied turning his motorcycle left, but when pressed in cross-examination, he agreed that he had veered left."

The appellant called no eye witnesses to corroborate his account of the accident.

As the primary judge found, the respondent's version of events was "starkly different":

"10. .... It alleged that the plaintiff was not forced off the road whilst travelling in the kerbside lane, by an unidentified black car, or at all. Rather, the plaintiff was travelling in the centre lane when he attempted to change lanes too quickly and lost control of his motorcycle, which then crashed.

11. The defendant called two eyewitnesses who were travelling west along Cabramatta Road in their respective vehicles, that is, in the opposite direction. There were discrepancies in their evidence, but both witnesses were clear that they saw the plaintiff lose control of his motorcycle whilst he was riding in the centre lane, which then veered immediately and directly across the kerbside lane into the gutter."

The primary judgement

The primary judge dealt with the liability issue succinctly as follows:

"Liability

12. It was submitted that, for a number of reasons, the court should reject the evidence of the two witnesses called by the defendant and accept the plaintiff's version of the accident. Firstly, the plaintiff gave an honest account of the cause of the accident, which he has consistently maintained. That version is not a subsequent invention or rationalisation, and was first given by him within moments of the accident, whilst lying on the ground injured, and again in hospital, a few days later, to his father, to a social worker, and to the police. Secondly, the two witnesses called by the defendant either did not see the totality of the events surrounding the accident, and missed seeing the black car, or they were mistaken, in particular as to the lane in which the plaintiff was riding his motorcycle when it began to veer, out of control, into the kerb. Thirdly, there was corroboratory evidence as to the presence of an unidentified black car that failed to stop, which was discussed amongst the various persons present at the scene following the accident, as recorded by the investigating policeman and confirmed by the defendant's witnesses.

13. In support of the contention that the version given by the defendant's two eyewitnesses should be rejected, the defendant [sic, plaintiff] relied principally on discrepancies in their evidence and as between their respective accounts. It was also submitted that the reliability of their memory was diminished in that they were not asked to recall the events and give their account of the accident until many months after it occurred.

14. Mr Reyes was driving a white Ford Corsair. He gave evidence that he had turned from the Hume Highway into the kerbside lane of Cabramatta Road and was travelling west. He then changed into the centre lane, when after a short time he saw the plaintiff riding his motorcycle towards him, on the other side of the road, in the centre lane. There was a silver car travelling beside the motorcycle in the kerbside lane, travelling in the same direction. There was another, black, car travelling 7 to 8 metres ahead of the silver car, in the kerbside lane. Suddenly, the plaintiff's motorcycle 'shot off' to the left across the kerbside lane between the silver car and the black car and slid into the gutter where it hit a pole. It all happened in a split second: see Exhibit 1*. He believes the plaintiff was trying to get in front of the silver car and lost control of his motorcycle.

15. When cross-examined, it emerged that there were some inconsistencies between the oral evidence of Mr Reyes and the account he gave the insurance investigator on 30 April 2007. Counsel pointed to differences in distances, his description of the lane the plaintiff was in as the 'middle' lane, the time of day when the accident occurred, and whether, after the accident, he pulled into a driveway on the north side of Cabramatta Road or the south side. Mr Reyes also admitted to memory loss due to marijuana abuse.

16. The plaintiff sought to rely on evidence given by Mr Reyes that the plaintiff told him, at the scene after the accident, that a car had cut in front of him. However, Mr Reyes was firm that the black car had always been in the kerbside lane and that there was no other car involved that caused the accident.

17. Mr Swan was driving a truck. He gave evidence that he had turned from the Hume Highway and was travelling west along Cabramatta Road, in the kerbside lane. After the point where three lanes merge into two, he saw the plaintiff riding his motorcycle towards him, on the other side of the road, in the centre lane. There was another car travelling in the same direction in front of the motorcycle, also in the centre lane . Suddenly, the plaintiff's motorcycle 'dove out' across the kerbside lane and hit the gutter. The motorcycle went 15 metres in the air and hit a lady walking on the footpath. The car in front kept going, but remained in the centre lane. He was unable to recall any vehicles in the kerbside lane travelling east. Mr Swan described the plaintiff's movement as sudden, a matter of seconds, and he believes he became impatient and tried to 'zip around' into the kerbside lane 'real fast', and lost control of his motorcycle.

18. When cross-examined, it emerged that there were some inconsistencies between the oral evidence of Mr Swan and the account he gave the insurance investigator on 14 February 2007. Counsel pointed in particular to a diagram he drew for the insurance investigator on which Mr Swan placed his vehicle in the centre lane, not the kerbside lane. Mr Swan also conceded that he only saw the accident out of the corner of his eye, with his peripheral vision. Further, Mr Swan thought the plaintiff was a P-plater, or an L-plater, and was therefore an inexperienced rider.

19. The plaintiff also sought to rely on evidence given by Mr Swan that afterwards, at the scene after the accident, he also heard talk of a car coming across in front of the plaintiff. However, Mr Swan was firm that he had a good view of the accident, and he did not see another vehicle cut the plaintiff off.

20. Counsel for the plaintiff submitted that he was an unsophisticated but honest witness whose evidence had the ring of truth. He complained immediately, at the scene of his accident, about being cut off by a black car, and has ever since given consistent versions of that account. He is a conscientious young man, not the sort of person to invent a black car. On the other hand, each of the two witnesses called by the defendant gave a version that was at variance with the other. Further, each version was unreliable in itself having regard to the inconsistencies in them. Accordingly, it was argued, the plaintiff's version of the accident should be preferred.

21. However, there was no direct evidence that a black car cut the plaintiff off, other than his own account, which similarly suffered from inconsistencies. He, for example, was adamant that he changed lanes before Vale Street, and that he had been in the kerbside lane for some distance before he was cut off, whereas both Mr Reyes and Mr Swan placed him in [the] centre lane well past Vale Street . In my view, the variations in the accounts of Mr Reyes and Mr Swan, and the inconsistencies involved in their versions of the accident, were peripheral . Both men had a clear, uninterrupted view of plaintiff on his motorcycle in the seconds leading up to the accident, and the accident itself. Neither said there was a car in the centre lane beside the plaintiff in the kerbside lane . Both accounts were consistent on the key aspects of the accident, firmly placing the plaintiff's motorcycle in the centre lane immediately before he lost control of his motorcycle and veered suddenly left, directly across the kerbside lane, into the gutter. That version is consistent with the diagram in the notebook of the investigating police officer, ** which the plaintiff adopted as accurate. Both witnesses were firm that there was no other car involved causing the plaintiff to veer or swerve, and that he was not cut off . Their evidence in the witness box on these key matters was consistent with the accounts given by them to the insurance investigator over two years earlier. These were independent witnesses with no stake in the outcome.

22. For these reasons I prefer the evidence of Mr Reyes and Mr Swan and I accept their version of the accident over that of the plaintiff. I am satisfied that the plaintiff was not cut off by an unidentified vehicle. I find, therefore, that the plaintiff was riding his motorcycle in the centre lane and that whilst attempting, suddenly and quickly, to change lanes into the kerbside lane so as to turn left at the Hume Highway, he lost control of his motorcycle, which veered sharply left out of the centre lane across the kerbside lane into the gutter where it crashed.

23. I am not satisfied that there was any negligence on the part of the driver of an unidentified vehicle that caused or contributed in any way to the plaintiff's injuries, and there will be a verdict for the defendant." (Emphasis added)

* Exhibit 1 to which the primary judge referred at [14] was a diagram of the incident Mr Reyes drew in the course of giving evidence.

** The diagram to which the primary judge referred (at [21]) was prepared by a Constable Attard. It will be necessary to refer to his evidence in detail.

The appellant submits that the passages I have emphasised in his Honour's reasons were fundamental to his ultimate finding on liability, and that they were erroneous, were not supported by, or were against the weight of, the evidence. I will expand on this in due course, however it is convenient to record at this point that the appellant accepted that in order for him to succeed on liability it was critical that there be a finding that he was "travelling in the kerbside lane with a vehicle beside him in the centre lane prior to ... being forced off the road". He also accepted that the primary judge's finding that he was in the centre lane prior to losing control "fatally contradicted" his version of events. If the appellant was not travelling in the kerbside lane prior to the accident, it was not possible for the accident to have been caused by the negligence of an unidentified vehicle merging across his path from the centre lane.

Each independent witness called by the respondent was interviewed by an insurance investigator - Mr Reyes on 30 April 2007, Mr Swan on 14 February 2007. The records of those interviews became exhibits at trial.

As will become apparent as the evidence is referred to, counsel, the insurance investigator and the witnesses sometimes described the kerbside lane as "lane one", the "inside lane" or the "left lane" and the centre lane as "lane two", the "outside lane" or the "right lane". For consistency, I have referred to them only as the "kerbside lane" and the "centre lane" respectively.

Notice of appeal

The appellant raises the following complaints in his Amended Notice of Appeal:

"1. The trial judge erred by drawing inferences which were not supported by, or were against the weight of, the evidence, namely:-

(a) The defendant's witnesses had a clear, uninterrupted view of the plaintiff on his motorcycle in the seconds leading up to the accident;

(b) There was no vehicle travelling in the centre lane beside the plaintiff whilst the plaintiff was travelling in the kerbside lane;

(c) The plaintiff was still travelling in the centre lane well past Vale Street;

(d) The plaintiff was travelling in the centre lane immediately prior to his losing control of his motorcycle;

(e) The vehicle travelling in the centre lane in front of the plaintiff remained in the centre lane after the plaintiff lost control of his motorcycle;

(f) The police diagram was consistent with the defendant's version of the accident;

(g) The plaintiff was not cut off.

2. The trial judge erred in not accepting the plaintiff's version of the accident where:-

(a) The evidence provided overwhelming support for the plaintiff's version of the accident;

(b) The plaintiff's version of the accident was clearly not a subsequent invention or rationalisation;

(c) The plaintiff was incapable of fabricating his version of the accident;

(d) The evidence clearly established the presence of an unidentified black car in the immediate vicinity of the accident.

3. The trial judge failed to provide adequate reasons for preferring the defendant's version of the accident in the circumstances outlined in grounds 1 and 2 above."

The appellant submits the primary judge ought to have found that:

(a) He was travelling in the centre lane of Cabramatta Road behind an unidentified vehicle;

(b) He subsequently merged safely into the kerbside lane;

(c) After travelling in the kerbside lane for about two seconds and covering a distance of about 30 - 40 metres, a black, unidentified vehicle travelling in the centre lane beside him, merged into the kerbside lane forcing the plaintiff off the road;

(d) the driver of the unidentified vehicle caused the accident; and

(e) the driver of the black unidentified vehicle was negligent in merging into the path of his motorcycle.

THE TRIAL

The grounds of appeal require a detailed analysis of the critical evidence. It is convenient to set that out at this juncture, then deal with the parties' submissions.

The appellant's version of the accident

It will be recalled that the appellant was travelling east along Cabramatta Road and was intending to turn left at the Hume Highway.

The appellant's evidence in chief at trial was that at some stage before the accident he was riding in the centre lane on Cabramatta Road, but had moved into the kerbside lane before its intersection with Vale Street. He said that as he was riding in the kerbside lane, travelling at about 60 kph, he "saw a black car ... on the right side of me." The black car's left rear wheel was "next to [his] eye line" when it changed lanes in a "[p]retty quick move." He said:

"It was just sudden and I panicked and he just was really quick and he just pushed me in."

He said he could "go nowhere." He was then asked:

"Q. Did he - his vehicle as it came across, did it come into contact with your vehicle?

A. Contact?

Q. I mean, did he hit you or did he not?

A. He pushed me. He pushed me.

Q. What does that mean?

A. Like it was just - it was just like closing me off, like, really quick, really sudden.

Q. So you were forced into a manoeuvre?

A. Yes.

Q. And so you hit and then you went into the air, I think you said?

A. Yes."

He said the last time he saw the black car was "when he was pushing me in."

In cross-examination the appellant said he had moved into the kerbside lane "30, 40 metres before the accident, and then said the accident occurred "probably 50, 80 metres or so" after Vale Street. However he next said he had not passed Vale Street before his accident and that the accident happened before he got to Vale Street. He did not know how long he had been travelling in the kerbside lane before the accident, although he said he was "on the number one [kerbside] lane comfortably."

The appellant repeated in cross-examination his evidence that the black car "was there, literally pushing me", but that the car "did not come in contact with [him]". Asked to explain what "he ... literally pushed me" meant, he said "[l]ike, forcing me into the gutter".

When asked how he came into contact with the gutter if the other car had not touched his bike, the appellant said "I didn't turn my bike. I was veered in." When asked why he did not put his brakes on, the appellant said "[i]t was too quick. It happened too quick. He just merged into my lane, really quick."

The cross-examiner then put the following proposition to the appellant:

"Q. Well, you see, I come back to saying this. If you're in the middle of the number one lane, and he didn't hit your bike, but you've moved to the left, then you must have steered your bike to the left, is what I'm suggesting to you. Isn't that how it must have happened, on your scenario?

......................

WITNESS: I keep repeating myself, that he pushed me into the gutter. I really can't say much of anything else."

The appellant could not remember seeing the black car in his rear vision mirror before the accident, nor any other vehicle as he was riding towards the point of the accident. He could not remember if there were any other vehicles immediately in front of his bike or any other vehicles in the centre lane ahead of, or behind, the black car. He could not identify any other vehicle which was in the vicinity of his accident other than the black car. He could not remember there having been a pedestrian on the footpath immediately to his left before the accident.

On the second day of his cross-examination, the appellant was asked again how he came to hit the kerb. On that occasion he said:

"So I probably swerved into the gutter because I was trying to avoid it".

When asked if he remembered swerving his bike, he said:

"I remember avoiding ... the car ... [j]ust try not to get too close to it. I don't want to cause an accident, so I avoid it."

The cross-examiner suggested to the appellant that the accident had happened after he had passed Vale Street. The appellant agreed. When the inconsistency between that evidence and his evidence the previous day, that he had not passed Vale Street before the accident, was drawn to his attention, he said he had been confused the previous day, thinking Vale Street was the street before the Hume Highway.

The cross-examiner then put to him that:

"[H]aving gone past Vale Street ... you were in lane 2?"

To which he responded:

"I don't think I was probably in lane 2 then."

The appellant denied having been in the centre lane immediately prior to the accident, with two vehicles in the kerbside lane, one next to him and another ahead. He also rejected the cross-examiner's suggestion that the accident occurred when he was trying to manoeuvre his motorcycle past a silver car in the kerbside lane and that there was no black car which forced or pushed him into a manoeuvre resulting in him hitting the gutter.

Constable Attard's diagram depicted the accident as having commenced in the centre lane. When asked about this, the appellant said that when Constable Attard showed it to him:

"I looked at it and said, 'it's sort of about right of what happened'."

The following exchange then took place:

"Q. OK. But you now say that it is not correct?

A. It's sort of about right when I look at.

Q. When you look at it now do you say that it is now correct or it's now something else?

A. Sort of about right.

Q. It's sort of about right is it?

A. Yeah."

The appellant accepted that the diagram depicted events as having occurred to the east of Vale Street. It was then put to him that, in substance, if he adhered to his evidence that he had moved into the kerbside lane before Vale Street which was "not on [the] diagram but further below it" then, on his version of events, the diagram "must be wrong because it's got you in the number 2 lane at some point east of Vale Street", to which he responded:

"When I looked at it it was sort of correct ...Now, when you say that there is Vale Street behind me, I say it looks wrong to me."

The appellant's accounts to medical practitioners

As the primary judge recorded (at [20]), the appellant's case was that he had given a consistent account of his accident since it occurred, a submission repeated in this Court. He relied upon the following records.

A social worker recorded on 12 July 2006:

"Pt reported that a vehicle from inside lane forced him off road into gutter & then into pole."

Dr Teychenne, a neurologist, recorded in his report of 3 July 2007 that the accident occurred when:

"Apparently a car merged from the right side into his la ne, hit his motorbike and pushed the motorbike into the gutter at about 60 kph."

Dr Teychenne recorded substantially the same account in a report dated 4 July 2007.

Dr Donaldson, an orthopaedic surgeon, recorded on 22 October 2007 an account of the accident in which:

"Apparently an unidentified vehicle crossed from an outside lane directly in front of him which 'cut (him) off' and this caused him to lose control of the motorbike which crashed into the kerb."

Dr Lee, a psychiatrist, records an account, arguably similar to Dr Teychenne's, in his report of 10 March 2008 in the section headed "History with regard to the accident":

"Mr Tran was riding his motorbike when a car pushed him into the gutter and then sped off. He still recalls this moment and has flashbacks."

Dr Sun, a rehabilitation consultant, recorded in a report dated 26 March 2008, an account of the accident in which the "other car on the right merge[d] into the lane Mr Tran was travelling without giving way and pushed his bike against the kerb."

Dr Walker, an orthopaedic surgeon, recorded in his report dated 29 May 2009:

"[Mr Tran] was driving his motorbike when he alleges a car travelling beside him forced him to leave the road where he collided with a pole at high speed."

Dr Haertsch reported on 23 March 2009, that the appellant:

"... was riding a motorcycle when he was knocked off his bike hitting the gutter when a merging car collided with him."

A newspaper advertisement published on 4 November 2006 in the Sydney Morning Herald, on the instructions of the appellant's solicitors, sought witnesses to:

"[A] motor vehicle accident ... involving a black unidentified motor vehicle travelling in the Easterly direction on Cabramatta Road, East, which caused a motorcycle registered ... to crash into the kerb, council pole and power pole and a pedestrian ..."

Ms Prattley, an occupational therapist, noted in her report of 24 June 2008 that the appellant was "involved in a motorcycle accident with an unidentified car on 5/7/06 resulting in him colliding with a power pole".

Dr Cameron, a consultant physician, recorded on 18 July 2008 an account received from the appellant that the latter "was riding a motorbike when a car crossed into his lane and knocked him to the ground."

Ms O'Dwyer, an occupational therapist, recorded in her report of 2 November 2008 that the appellant was "hit by a motor vehicle while riding his motorcycle".

The appellant also relied upon evidence given by his father that a few days after the accident the appellant told him that "a black car merging to his lane and forced him off the road and he can't do anything about it."

Mr Reyes

When Mr Reyes was interviewed on 30 April 2007, he was shown a diagram of Cabramatta Road on which were marked the driveways to several houses on the side of the road on which the accident took place and the intersection with Vale Street. He was asked to mark on the diagram "exactly where this motorbike was when it had its accident." He drew a black car and a silver car in the kerbside lane east of the intersection with Vale Street, travelling east and a short diagonal line apparently intended to indicate the motorcycle's line of travel, moving from the centre lane into the kerbside lane in front of the silver car. The black car was depicted as having been some distance in front of the motorcycle. He drew an "X" to depict the first point of impact of the appellant's motorcycle against the kerb, a circle further east to indicate the pedestrian struck by the motorcycle and another circle further east than the pedestrian marked "him" - referring to the point where the appellant came to a rest. He drew his car in the centre lane travelling west. He appears to have first drawn it in the kerbside lane, but had crossed that part of the drawing out.

Mr Reyes said to the investigator (apparently as he was drawing):

"Q33. How far would you estimate you were from the point of impact of the cyclist when you witnessed it, roughly?

A. About 30 metres

Q34...

A. Well, he was driving and he was on the outside lane and there was a car here ... I can't remember what type of car it was ..., I figure it was a silver and ended up stopping behind him. Some lady I think it was. And he was coming and he went to go in this lane and he lost control and that's when the bike just went ..., and the bike ended up here. He would have ended up somewhere here and the bike was in the driveway. The lady was here. There's a big light pole and a sign there. So he ended up going in front of them and there was a car in front of him but the car in front of him had nothing to do with it, like, it was just a big ..., it was a black ..., whatever car it was but I mean ...

Q35. So he was initially in this middle lane?

A. The middle ..., yeah, there's only two lanes, so he went in to go into the left lane, like overtake the car that's there."

After marking the diagram, Mr Reyes was asked to explain what he saw and heard, being "as descriptive as possible". He said:

"Q.55.....

A. I came off. I turned left off the Hume Highway onto Cabramatta Road and drove up probably twenty metres. And then that's when I saw the motorbike guy coming on the right. He was in the closest lane to me on the right and he turned into the ..., he would have been turning into the left lane, trying to overtake the silver car. And you can see he was coming too fast and he ..., when he overtook he just lost control and that's when he hit straight into the gutter, he couldn't miss anything."

When asked to "approximate" the appellant's speed, Mr Reyes said he thought he "probably would have been going about seventy. Seventy, seventy-five ... I'm not sure how ...I don't know..." (Q65)

"Q66. Was he accelerating when he lost control?

A. I wouldn't have a clue ... I could just see him coming, like faster than most of these guys on the left."

When asked again (Q84), he said "sixty or seventy. I don't know ...".

When Mr Reyes went to see if the appellant was all right, he said the appellant was screaming and asking what had happened to his leg. When asked if the appellant said anything to him he said (Q. 59), "No, he was in shock ...". The following exchange then took place with the investigator:

"Q67. When he cut into this left lane to over-take this silver car, was there a car travelling in front of him in the middle lane?

A. Yeah there was a black car, yeah there was a black car, yeah.

Q68. Do you remember what kind of a car or anything?

A. No, that's the car that everyone was saying that 'There's black car and he just took off, like he didn't stop'. Yeah didn't stop and that was the guy that that guy was saying that he cut in front of him, but he was always in the left lane, that other black car.

Q69. So was the black car travelling the entire time in the left lane ... is that correct? The one nearest to the footpath?

A. Yeah, yeah, yeah.

Q70. Is it correct that the motorbike rider has cut in front of the silver car and been behind the black car, would that be correct ...?

A. Yeah. He was probably trying to turn left, I don't know. Because there was two ... , from that lane you could turn left before it and you could turn left at the Hume Highway. It's not for a while.

Q71. So am I correct in saying that the black car was always in the left lane?

A. Yeah, yeah, yeah he was always in the left lane, yeah.

Q72. And the motorcyclist went in between the black car and the silver car?

A. Yeah. The black car was ... he was... like there was room for him to come into the left lane".

Mr Reyes disagreed with the appellant's version of the accident, explained by the interviewer as having been that he was "actually cut off by an unidentified black vehicle, that later left the scene", because, he said, he was "sure the black car would have stopped if he cut someone off he would have seen it but he wasn't ... he didn't cut anyone off." The following exchange then took place:

"Q77. Because ... was the black car always travelling in the left lane?

A. Yeah he was always in that lane, yeah. There was no-one next to me. That's what I remember. There was no-one in the ..., like no-one went past me at all yet until he crashed and then all the cars started coming past me.

Q78. So you had a clear view of the accident?

A. Yeah I saw him, yeah. I saw everything.

Q79. There was no vehicles in between? "

A. No there was none. Nothing in there.

...

Q80. The black vehicle that was there, that left the scene, is that correct?

A. He just kept driving. He mustn't have known, like he was driving like nothing happened, so ..."

Mr Reyes said that the police got his details and "just asked me a few questions".

At the trial, Mr Reyes drew a substantially similar diagram of the accident to that he drew in April 2007. This diagram showed the appellant's trajectory in greater detail, again depicting him moving from the centre to the kerbside lane in front of a silver car to a point of impact with the kerb, with another vehicle (marked as "OC") some distance in front of the manoeuvre also in the kerbside lane. The motorcycle's movement from the centre to the kerbside lane was depicted as having occurred east of Vale Street.

At the trial Mr Reyes said that after he had turned left from the Hume Highway into Cabramatta Road, he:

"... drove probably ten metres and then I looked up and I could see the bike coming around in the closest lane to me, which was on the right, right-hand side of my lane."

He was in the centre lane when he saw the accident. When asked what he saw happen, he said:

"Just the bike, he slid off the bike and the bike just sliding straight into the gutter and hit the pole."

He said the motorcyclist was in the lane closest to him. There was a silver car in the lane "right beside him" (i.e. the motorcyclist) and another car about seven or eight metres ahead. He said he did not notice any other vehicles in the kerbside lane of the eastbound carriageway, or any other vehicles apart from the motorcycle in the centre lane.

Asked what he saw the motorcycle do, he responded that he thought "he was trying to go in front of the silver car, overtake the silver car ... and that's when I think he just lost control and then just the bike started sliding."

Mr Reyes estimated that the car ahead of the silver car was about 25 metres from the intersection of Cabramatta Road and the highway, while the silver car was 32 or 33 metres from that intersection. He said the motorcycle was eight metres away from him when it started to change from the centre lane to the kerbside lane.

In cross-examination Mr Reyes said that there was a split second from the time he first saw the motorcycle to when it lost control while still in the centre lane, between the black and the silver car, about 25 metres back from the highway. He agreed with the cross-examiner's proposition that based on those distances, the appellant lost control and hit the kerb somewhere between 25 to 30 metres from the intersection with the Hume Highway.

When asked whether he was having trouble remembering what happened, he said he had been smoking marijuana for two years and had noticed he had a little bit of memory loss.

When the cross-examiner asked him what he would say if he was told the actual impact was 120 metres back from the Hume Highway, Mr Reyes said he did not know, but in substance, he was telling the Court what he could remember. It was then suggested to him that if he was 110 metres away from the motorcycle, he could not tell what lane the appellant was in, to which Mr Reyes responded: "I've got pretty good eyesight". Mr Reyes could not remember whether the accident happened in the afternoon or the morning.

At the trial Mr Reyes was asked about the answer recorded to question 68 above (at [49]). The following exchange then took place:

"Q. So you did hear people say the black car cut in front of him at the scene?

A. Yeah, yeah.

Q. Okay.

A. That's what he was saying, the guy on the floor with the helmet that had the accident.

HIS HONOUR:

Q. Sorry? I missed that. That was what he was saying -

A. That's what he was saying to me and then -

Q. When he was - when? When was this?

A. On the floor.

Q. When he was on the ground?

A. Yeah.

MR GILBERT:

Q. So he asserted to you at the scene that he was cut off by the black car?

A. Yep.

Q. And other people were saying it too?

A. Yep.

Q. Okay.

A. After that, yeah. Not straight away when he said it. After.

Q. But you heard other people say it?

A. Yeah, after he said it, yeah ." (Emphasis added)

Mr Swan

When Mr Swan was interviewed on 14 February 2007 he, too, was asked to mark a diagram depicting, in substance, where he was when he witnessed the accident and the position of the motorcycle prior to the "collision" and the point of impact. The word "collision" was used by the investigator to refer, as I understand it, to the motorcycle's collision with the kerb. As is apparent, the appellant did not allege the unidentified motor vehicle struck him or his motorcycle.

According to Mr Swan's diagram he was driving west in the centre lane of Cabramatta Road, a position he told the investigator was probably ten or fifteen metres from the accident (Q23). He depicted the motorcycle as having been travelling east in the centre lane of Cabramatta Road past the intersection of Cabramatta Road and Vale Street. He depicted the point of impact as having been some distance further to the east of the motorcycle where drawn on the diagram and past a pole on the footpath.

The investigator asked Mr Swan to describe exactly what he had seen and heard. He said (Q73):

"A. OK...yep. Well, I was coming from the Hume Highway. I turned right to Cabramatta Road, and as I was coming down, out of the corner of my eye, I saw a couple of cars and a motorbike behind the car in the middle lane, and I think he got impatient, and when he had time to merge across to the left lane, he accelerated and ... 'cause I think he was P-plater, by memory, or a L-plater, he couldn't handle the revs properly and misjudged the acceleration and hit the gutter with quite a force." (Emphasis added).

Mr Swan estimated that the appellant "would've been going under 60 before he span out, and he might have, you know, hit up to 70 ... 70 or 80." The following exchange then took place:

"Q96. OK. When he changed into that inside lane, was it clear for him to change then?

A. Um ... yeah. I think there was a car on the inside lane a bit further back, so he thought he had to go a bit faster to get through the little gap and then go.

Q97. OK. Now, the injured motorcycle driver has stated that there was another unidentified vehicle that actually cut him off.

A. Yeah.

Q98. What's your ...?

A. I didn't really ... I didn't see that but I remember hearing something of a bloke who was coming the other way. He was talking and he was saying some bloke cut him off, and I didn't see that. But I was right next to him. I said I saw it in the corner of my eye when I saw him speed out, then I saw him hit the gutter.

Q99. OK, so you don't recall seeing another vehicle?

A. Recall? .... no ... no. " (Emphasis added).

Mr Swan confirmed that the appellant was in the centre lane next to the double white lines, then changed into the kerbside lane just before "his collision". The following exchange took place:

"Q110. OK, and you didn't notice another vehicle that may have forced him to go into the gutter?

A. Um ... not to my recollection. I just wasn't ... I just seen him come out behind the car, and there could've been a car cut him off . I'm not quite sure but then I saw him in the air.

Q111. Are you able to estimate how long he was in the inside lane before he went into the gutter?

A. Oh, two seconds ... a second, yeah.

Q112. And so it was virtually as he changed ...?

A. As he changed, he went in, yeah ." (Emphasis added).

Mr Swan talked to the appellant after the accident. When asked by the investigator whether the appellant had gone "into detail about what he thought had happened with the accident at all", (Q83) Mr Swan responded:

"No, he didn't say anything too much. I think he was ... I think pain was ... starting to hit him because his leg was just dangling there".

The investigator asked Mr Swan who he considered to be at fault to which he responded " ... in my eyes, it was the motor bike rider's fault." (Q122) The following exchange then took place:

"Q123. OK. And you don't recall seeing a motor vehicle come into the inside lane and cut ... ?

A. No.

Q124. ... the motor bike ...?

A. No... no. I think there was a vehicle in the inside ... the outside lane, a bit further back, that I can remember but I didn't see a vehicle cut him off.

Q125. So there didn't appear to be another vehicle merging from the inside double white lane into this one?

A. Yeah. Well, that lady ... the lady in front of the motor bike could have been but when I saw him speed out, then I seen him hit the gutter straight away. I focused on his [sic, him] straight away. I didn't see where that car went 'cause I think the car took off anyway so that car could have been cutting him off. I'm not quite sure ... I just saw the bike ... the guy hit the gutter, then in the air, saw the lady knocked down that he knocked down."

Mr Swan said of the police who attended the scene:

"...then a copper came and sort of...yeah, he wasn't really interested at all."

He told the investigator he did not "sign a notebook statement with the Police". At trial he said he had signed a statement "in a notebook". There was no such statement in Constable Attard's notebook and no evidence that any other police officer took statements. I would conclude, therefore, that Mr Swan's recollection was better when he spoke to the investigator. The appellant did not contend anything turned on this.

At trial, in chief, Mr Swan said that he had turned right into Cabramatta Road from the Hume Highway and was driving in the kerbside lane. He saw a car and a motorbike coming towards his truck, the motorbike being in the "number two lane, closest to the inside lane". He described the car - which was "in the number two lane as well" - he saw as "just driving down the road, like normal." He was asked:

"Q. And did you see what the bike did?

A. It was behind the car and then sort of dove out and hit the gutter."

The "number two lane" for Mr Swan was the centre lane.

Mr Swan said he did not see any other vehicles changing lanes around the motorcycle at the time it moved from the centre lane to the kerbside lane. In cross-examination, Mr Swan agreed he was looking straight ahead driving when he first saw the vehicles. He disagreed with the proposition he saw them "out of the corner of your eye", saying:

"A. Oh, it wasn't the comer of my eye, it was just sort of in front of me, on the right, so oh yeah.

Q. Corner of your eye?

A. Yeah, caught my eye, but good vision, yeah."

Subsequently the cross-examiner put the following to Mr Swan:

"Q. Now you're quite sure - I mean, and you're being fair in terms of saying, well, you know, 'I didn't get a great look at it' - but you're quite sure you were in the kerbside lane all the time?

A. Yes."

Mr Swan could not remember any car in the kerbside lane.

Mr Swan agreed that what he saw looked like a "sudden loss of control" which could be explained if another vehicle had tried to come across in front of the motorcyclist, but said he did not see a vehicle come across. In response to the suggestion that the appellant had changed lanes into the left lane and was there for a couple of seconds before he lost control, Mr Swan said:

"No, because he sort of - when I saw it, he sort of sped up to get around it and then it happened sort of in one motion, in the left lane, and bang, to the gutter .

Q. He was hurrying, you say, to overtake a car on its left?

A. Yeah.

Q. Rather than a car on its right.

A. The car was on its right, yeah, overtaking, yeah, to get around him on the left, yes." (Emphasis added)

When shown the diagram he had drawn when interviewed in February 2007 which depicted his vehicle in the centre lane, Mr Swan, in substance, acknowledged that he could not explain that and that he had thought he was in the kerbside lane but, nevertheless, said "that's of no importance to what I saw in the motorbike accident coming ahead."

In response to a question as to whether his view of the appellant's movement into the kerbside lane was obscured by the car which was in the centre lane, he said:

"Well, I'm in a truck, so I'm a lot higher than the car, so I could see over."

In re-examination Mr Swan said "... from when [the appellant] came outside the car to hitting the gutter, it's probably about a second."

Mr Swan gave the following evidence in cross-examination about what he heard at the scene:

"Q. You heard other people talk about a vehicle coming across, didn't you?

A. Yeah, I heard, yeah, a few --

Q. And cutting him off?

A. Yeah.

Q. But you didn't see it?

A. No, I didn't see it, no."

Constable Attard

The appellant sought to rely on two preliminary findings made by the primary judge as indicating that his Honour had accepted the evidence of Constable Attard, one of the police officers who had attended the scene of the accident, and rejected that of the independent witnesses. The gist of Constable Attard's evidence was as follows.

Constable Attard was a probationary constable. At the time of the accident he had been a police officer for "just on 8 months". A more senior officer, Constable Chenery, accompanied him to the accident. He asked Constable Chenery if he could "do the job", apparently of recording the circumstances of the accident, because he wanted the experience.

Constable Attard attended the scene at around 11am on 5 July 2006. He did not interview the appellant at the scene. He did interview witnesses but could not remember what any "specific witness" told him at the accident scene. He first said he could not recall whether any person at the scene of the accident gave him a version which differed from that he obtained in hospital from the appellant, then said that he did not "receive any different version from that, from what I received from the plaintiff later on."

Constable Attard's notebook entry for 5 July 2006 was brief. It recorded names and apparently addresses (the address details were masked by a super-imposed sticker). Two names appeared other than the appellant's: Mr Swan and a Mr Young. It was common ground at the trial that Mr Young could not be located in order to give evidence. The notebook did not contain any statement from either of those two gentlemen about the accident.

The notebook also recorded the appellant's details, then set out a diagram drawn by Constable Attard. The diagram showed the four lanes of Cabramatta Road. The appellant's motorcycle's path was depicted by a line which commenced, according to Constable Attard's evidence at trial, about 30 or 40 metres past the intersection of Vale Street and Cabramatta Road. It was drawn as commencing in the centre lane, then crossing the broken dividing line markers into the kerbside lane before ending up at the base of a power pole. No other vehicles were depicted on the diagram.

Constable Attard said that the line he drew in his diagram of the accident was intended to indicate his understanding of the accident based on the "verbal versions [he] received at the scene" of the route the motorcycle took from the road to the damaged sign. Constable Attard said that after the appellant went into the kerbside lane, he had "gone straight ... then he's hit the kerb." He did not know the distance the appellant had gone straight.

On his return to the police station on 5 July, Constable Attard prepared an Event Report describing the incident as a "major traffic crash". He recorded the accident as having occurred "500m east" of the intersection between Cabramatta Road and the Hume Highway. At trial Constable Attard accepted that the accident did not happen 500 metres away from that intersection but, rather, approximately 120 metres. He could not explain the error in his Event Report. He subsequently returned to the scene and measured the distance from the Hume Highway to the point where the appellant finally came to rest as 120 metres.

Constable Attard's Event Report recorded the applicable speed limit at 50 kph, a figure he also acknowledged at the trial as having been an error. The correct speed limit was 60 kph.

Under the heading "Witness" in the Event Report, Constable Attard recorded Mr Reyes' name in addition to the two names which had appeared in his notebook.

Under the heading "Crash Summary Details", Constable Attard recorded:

"About 10.30am on Wednesday 5 July, 2006 Driver 1 was travelling East along Cabramatta Rd East, Cabramatta in the lane closest to the kerb. As Driver 1 was travelling in this lane, a Black Motor Vehicle (NFD) quickly merged from the right lane into Driver 1's lane, effectively cutting him off. This caused Driver 1 to take quick evasive action which resulted in Driver 1 crashing his motorcycle into the kerb, council pole, and power pole. Driver 1 was ejected off the motorcycle and landed on the ground. The motorcycle has then struck Driver 2 (pedestrian) in the back of the head, causing Driver 2 to sustain minor injuries."

After several unsuccessful attempts, Constable Attard finally interviewed the appellant at Liverpool Hospital on 27 July 2006. He recorded the appellant's version of events in his Police notebook, relevantly as follows:

"I was on the left lane of Cabramatta Road East heading towards the Hume Hwy. I was in the lane closest to the kerb. I saw a black car merge from the right lane to my lane. I don't know if the other car was indicating but he quickly moved into my lane. Next thing I know I was on the ground."

When asked at what point he noticed the black car, the appellant was recorded as saying:

"When it pulled into my lane and cut me off."

He could not remember whether he braked. He said he was travelling at "60km and below".

After he interviewed the appellant, Constable Attard prepared a Case Report in which he set out the interview with the appellant as recorded in his notebook. He also set out a statement from a person he described as the injured pedestrian. It was not suggested her account contributed to an understanding of how the accident occurred. Under the heading "Case Narrative", Constable Attard recorded:

"Due to the version obtained by Driver 1 and the verification from witnesses both recorded and anonymous at the scene of the accident, it is believed by Police that Driver 1 was cut off by an unknown black motor vehicle.

Witnesses also support the claim by Driver 1 he did all he could to avoid colliding with other vehicles and it was beyond his control regarding the motorcycle hitting the pedestrian. Due to this no formal action will be taken against Driver 1."

With the exception of the statements from the appellant and the injured pedestrian, Constable Attard did not attribute any part of his Case Report (or his earlier Event Report) to any of the three witnesses he named: Mr Reyes, Mr Swan and Mr Young. He said at trial he did not take a statement from any of those three people. He could not remember what, if anything, the three men told him.

SUBMISSIONS

GROUND 1

A. Appellant's overarching submission: error in the process of fact finding

The appellant's essential submissions in relation to ground 1 are that the primary judge's conclusions were contrary to the compelling inferences in the case and, further, that his Honour failed to have regard to all of the evidence touching upon the central issue, and to that extent failed to use his forensic advantage. The latter point was identified by Mr S Campbell of Senior Counsel, who appeared for the appellant on appeal with Mr M Maxwell but not at trial, as an error in the process of fact finding in the sense to which Hayne J referred in Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]), namely "a failure to examine all of the material relevant to the particular issue".

Mr Campbell criticised the primary judge's finding (at [21]) that the appellant had "adopted as accurate" Constable Attard's version of the accident. Mr Campbell submitted that the diagram was only useful as an aid to understanding the evidence of lay witnesses, rather than, as he submitted the primary judge had used it, as a basis from which to draw inferences as though it was "real evidence". However he also argued that the diagram and the Event Report were business records within the meaning of s 69(1) of the Evidence Act 1995, as explained in Jackson v Lithgow City Council [2010] NSWCA 136, of what eyewitnesses actually said to Constable Attard as he conducted his investigation, and had to be looked at and understood in the light of what Constable Attard recorded as the effect of what he had been told by those persons. The use of the diagram and the business records issue is dealt with at H below.

Mr Campbell submitted that there was no issue that "in his severely injured state" the appellant recounted his version of the accident and that other people at the scene mentioned it also - in circumstances, he argued, where it could be inferred their statements were independent of what the appellant communicated to them.

Mr Campbell also sought to make good his challenge to the inferences drawn by the primary judge by critically examining in the written submissions the evidence of the two independent witnesses his Honour said he had accepted on "key matters". These submissions addressed the passages I have emphasised in paragraph [21] of the primary judgment: see [11] above. I will deal with those particular submissions which will assist in resolving Mr Campbell's overarching argument. That will unfortunately, having regard to the minutiae of the attack on individual sentences expressed to resolve a dispute about what caused a sudden accident, necessitate a degree of repetition.

It should be noted at this stage that the appellant's written submissions analyse the evidence in far greater detail than was done at trial. That will be relevant when considering the complaint about adequacy of reasons.

B. Constable Attard's evidence

The appellant's written submissions commenced with the proposition that the primary judge had accepted Constable Attard's evidence in two respects, which meant his Honour necessarily rejected the independent witnesses' evidence. Although not expressly stated, the underlying premise was that the primary judge reasoned inconsistently in accepting their evidence in other respects.

The submission depended on the following parts of the primary judgment.

First, the primary judge found (at [6]) that the accident had occurred "some 120 metres west of the Hume Highway." Mr Reyes had given evidence in cross-examination that it occurred no more than 30 metres west of the highway, whereas Constable Attard had given evidence consistent with his Honour's findings. Accordingly, the appellant submitted that the primary judge had unequivocally accepted Constable Attard's evidence and implicitly rejected Mr Reyes' evidence that the accident occurred significantly closer to the highway.

It is hardly surprising the primary judge accepted Constable Attard's evidence in this respect. As I have earlier explained, the constable had measured the distance from the Hume Highway to the accident after realising that his original estimate of 500 metres in his Events Report was wrong. While Mr Reyes was inaccurate in his estimate of the distance from the Hume Highway to the point of impact, he drew the point of impact accurately on two occasions when interviewed in April 2007 by an investigator and at trial - in the sense that he depicted the appellant/his motorcycle as having collided with the kerb, struck a pedestrian then come to rest further to the east.

Secondly, the appellant relied on the primary judge's finding (at [7]) that the appellant had been riding his motorcycle at about 60 kph immediately prior to the accident. The appellant had given that evidence at trial without contradiction. The evidence was consistent with what he told Constable Attard in Liverpool Hospital following the accident.

In contrast, the appellant contended, Mr Reyes and Mr Swan had estimated the appellant's speed as having been far greater. Mr Swan told the investigator in February 2007 that the appellant "might've ... hit up to ... 70 or 80 [kph]". Mr Reyes told the investigator in April 2007 that the appellant "probably would have been going about 70 ... [to] 75 [kph]". At trial Mr Reyes gave evidence that the appellant was "going faster" than another vehicle travelling in the same direction, but did not give any estimate of the speed of that vehicle.

Once again, the appellant submitted, the primary judge's finding that he was travelling at "about 60 kph" necessarily involved the unequivocal acceptance of the appellant and Constable Attard's evidence and the implicit rejection of Mr Reyes' and Mr Swan's evidence.

It is apparent from the trial submissions that there was no controversy that the appellant was travelling at 60 kph before the accident. Constable Attard's evidence of the appellant's speed merely amounted to accepting the appellant's statement. The appellant's counsel did not submit at trial that accepting the appellant's/Constable Attard's evidence to this effect involved rejecting the independent witnesses. Moreover the appellant's written submissions do not set out Mr Swan's evidence in full. He estimated that the appellant was "going under 60 before he span out, and he might've ... hit up to 70 ... 70 or 80." This was consistent with Mr Swan's observation that the appellant accelerated as he changed lanes. Mr Reyes also said the appellant was travelling at "sixty or seventy". It is apparent from this analysis that the primary judge's statement that the appellant was travelling at 60 kph did not involve any clear rejection of the independent witnesses. Each described the appellant as having been travelling at about 60 kph prior to the accident. Each also, it should be noted, observed the appellant to have accelerated immediately prior to the accident.

I would not accept, accordingly, the appellant's submission that the primary judge reasoned inconsistently in accepting the independent witnesses' evidence in other respects than where the accident occurred and the appellant's speed. Further, and in any event, it is open to a trial judge to accept some, but not all, of a witnesses' evidence.

C. The defendant's witnesses had a clear, uninterrupted view of the plaintiff on his motorcycle in the seconds leading up to the accident

Appellant's submissions

The appellant submitted that the evidence of Mr Reyes and Mr Swan was so inconsistent with each other's that it was not open to his Honour to infer that one or either of them or possibly both had a "clear, uninterrupted view" of the plaintiff prior to the accident. He relied on the fact that Mr Reyes gave evidence that he first saw the appellant's motorcycle when he was 20 metres along Cabramatta Road, having turned left from the Hume Highway, and there were "no vehicles in front of [him]" on his side of the road. On the other side of the road he saw a silver car in the kerbside lane "right beside [the plaintiff's motorcycle]" and another car "about seven [or] eight metres" ahead of the silver car also in the kerbside lane and otherwise there were "no other vehicles" in the kerbside lane travelling in that direction.

Mr Swan's evidence was that he was driving a truck and turned right into Cabramatta Road from the Hume Highway when he saw the appellant's motorcycle coming towards him in the centre lane. Apart from "a few cars probably further back, but not anywhere close enough", Mr Swan "only saw a [single] car and a [single] motorbike" in the centre lane, the car being in front. He saw no vehicles in the kerbside lane.

The appellant contended that Mr Reyes was adamant there were no vehicles in front of him on his side of the road whereas, as was incontrovertible, Mr Swan's truck must have been in front of him, he also having turned onto Cabramatta Road.

Thus, the appellant contended the two independent witnesses reported seeing a different number of vehicles and in different configurations in the vicinity of the plaintiff's motorcycle. On this basis he submitted their versions of the accident were mutually exclusive and that at least one of them had to be mistaken. In such circumstances he argued the trial judge was not entitled to accept both their accounts over the appellant's version of the accident.

Finally, the appellant drew attention to Mr Swan's concession in cross-examination that he did not "get a great look" at the accident. He also repeated his submission concerning the primary judge's acceptance of Constable Attard's evidence that the accident occurred approximately 120 metres west of the Hume Highway, thus placing Mr Reyes more than 100 metres from the appellant's motorcycle around the time of the accident. In the light of Mr Swan's concession, and Mr Reyes' position prior to the accident, the appellant submitted the primary judge's inference that both men had a clear, uninterrupted view of the accident was erroneous.

Respondent's submissions

Mr R Bartlett of Senior Counsel, who appeared for the respondent on appeal but not at trial, contended that at trial the appellant did not challenge the proposition that Mr Reyes and Mr Swan each had a clear uninterrupted view of the appellant on his motorcycle in the seconds leading up to the accident but, rather, argued they were mistaken in what they saw or in the case of Mr Swan did not see what occurred at all until impact.

Secondly, Mr Bartlett argued that the fact that Mr Reyes and Mr Swan differed in their recollection of what they saw at the time did not mean each did not have an uninterrupted view of the appellant in the seconds leading up to the accident. He drew attention to the evidence I have set out when dealing with each witnesses' evidence both in their statements to the investigator and at trial. These were Mr Reyes' evidence that he "saw everything" (at [50] above) and Mr Swan's evidence concerning his elevated perspective from his truck cabin (at [77] above) and his statement that it was "sort of in front of me, on the right ... caught my eye, but good vision" (at [72] above). He argued that on the basis of that evidence, while it was apparent that each man had a slightly different perspective of the accident, that did not refute position that from each of their perspectives, each could clearly see the accident.

Thirdly, Mr Bartlett disputed the appellant's submission that because his Honour found the accident occurred some 120 metres west of the Hume Highway that "necessarily placed Reyes more than 100 metres from the plaintiff's motorcycle around the time of the accident". His essential proposition appeared to be that although Mr Reyes first saw the appellant when he had driven about 10 metres west, he kept moving and, of course, got closer to the appellant as events developed. Thus while he appeared to accept that Mr Reyes gave different estimates of his distance from the appellant at critical times (in interview, 30 metres from the cyclist at the point of impact; at trial, 8 metres away when the motorcycle started to change from the centre lane to the kerbside lane), Mr Bartlett contended his account was essentially consistent, he was closer to the critical event of the accident than the appellant's submission acknowledged and nothing detracted from his evidence that he had a clear view of the accident.

Finally Mr Bartlett contrasted Mr Reyes' and Mr Swan's recollection of the surrounding traffic with the appellant's which I have set out at [24]. In short, the only other vehicle in the vicinity the appellant remembered was the black car which he did not see, in effect, until the last moment.

Consideration

I would reject the appellant's criticism of the primary judge's statement concerning the respondent's witnesses' view of the appellant prior to the accident.

The concession the appellant attributes to Mr Swan that he did not "get a great look" at the accident is not, in my view, a fair summary of Mr Swan's evidence. While he accepted that he was looking straight ahead while driving and that the accident "caught [his] eye", he said he had "good vision". The proposition that he "didn't get a great look at it" was put to him in a double-barrelled question, the substantive thrust of which went to whether he was sure he was in the kerbside lane all the time: see [73] above. In my view his affirmative answer to the question cannot be treated as a concession to the effect for which the appellant contends. When it was subsequently put to him that his view may have been obscured by the car in the centre lane, he explained that his position in his truck made him higher than cars so that he "could see over": see [77] above.

Insofar as Mr Reyes is concerned, it was put to him that his position approximately 110m from the motorcycle might have limited his ability to determine the lane the appellant was in, to which he responded by referring to his "good eyesight": see [60] above. Not surprisingly this line of cross-examination was not pursued.

Save to the extent to which I have referred, the appellant did not challenge either Mr Swan or Mr Reyes as to their respective ability to see the events in front of them. The fact that each may have had a different recollection of what they saw did not, in my view, undermine the primary judge's inference that from their respective positions they had "a clear, uninterrupted view of" the appellant both in the seconds leading up to the accident and of the accident itself. Critically, both recollected the appellant being in the centre lane, a position as already recorded, fatal to his version of the events.

D. There was no vehicle travelling in the centre lane beside the plaintiff whilst the plaintiff was travelling in the kerbside lane

Appellant's submissions

Mr Campbell submitted that the primary judge's statement (at [21]) that "[b]oth witnesses were firm that there was no other car involved" was erroneous, was not supported by, or was against the weight of, the evidence and, accordingly, could not be used to support the primary judge's ultimate finding (at [22]) that the appellant was not cut off by an unidentified vehicle.

Mr Campbell argued that there was an inconsistency between Mr Reyes' evidence at trial and what he said in his statement. He submitted that at the trial Mr Reyes made no allowance for another vehicle travelling in the centre lane while the appellant was travelling in the kerbside lane. He contended that in Mr Reyes' statement, however, he agreed there was a black car travelling in front of the appellant in the centre lane at the time the appellant "cut into [the kerbside] lane to overtake [the] silver car." He contended that in cross-examination Mr Reyes conceded the account in his statement was correct.

Next, Mr Campbell submitted that Mr Swan's evidence, having initially placed the appellant's motorcycle in the centre lane behind another vehicle, did not exclude the possibility that that vehicle, or another unidentified vehicle, was positioned in the centre lane at the time the appellant merged into and was travelling in the kerbside lane.

Mr Campbell argued that Mr Swan conceded under cross-examination that the appellant was driving in the kerbside lane for "up to two seconds prior to losing control" and had earlier said the appellant was initially travelling in the centre lane behind another vehicle before merging into the kerbside lane. He contended that the effect of Mr Swan's concession "was to depict the very circumstances necessary to support the [appellant's] version of the accident".

Respondent's submissions

Mr Bartlett first submitted that the primary judge made no specific finding that "[t]here was no vehicle travelling in the centre lane beside the plaintiff whilst the plaintiff was travelling in the kerbside lane" but, rather, merely observed, when referring to Mr Reyes' and Mr Swan's evidence, that "neither said there was a car in the centre lane beside the plaintiff in the kerbside lane."

Next, Mr Bartlett argued that it was clear from Mr Reyes' statement that he maintained that the black car was at all times travelling in the kerbside lane. That account was consistent with the diagram attached to his statement and the diagram he completed at the trial. He also contended it was not correct to say that Mr Reyes conceded at the trial that the black car was ever in the middle lane.

As to the suggestion that Mr Swan's evidence was consistent with the appellant's account of the accident, Mr Bartlett pointed out that the gist of Mr Swan's evidence was to deny that the appellant was in the kerbside lane for a couple of seconds before he lost control but, rather that the accident "happened sort of in one motion, in the left lane, and bang, to the gutter".

Consideration

It might be accepted, as Mr Bartlett submitted, that the primary judge did not make a finding expressly in the terms the appellant contended, but, rather said, referring to Mr Reyes' and Mr Swan's evidence that "neither said there was a car in the centre lane beside the plaintiff in the kerbside lane". However, in my view, his Honour's acceptance of that evidence was tantamount to a finding in the terms for which the appellant contends.

At that point in his reasons, the primary judge was dealing with whether a black car cut the appellant off - a finding that there was a car travelling in the centre lane beside the appellant while he was travelling in the kerbside lane was critical to his case that that vehicle then moved into his lane and cut him off. The passage in which this sentence appeared is that part of his Honour's reasons in which he rejects that case. Properly understood his Honour, in stating that neither independent witnesses stated that there was a car beside the appellant in the centre lane, was making a finding of fact which went to his ultimate conclusion that there was no such car.

However, in my view, the appellant's challenge to this finding must fail. The challenge was based on two propositions. First, that Mr Reyes said in his April 2007 statement that there was a black car travelling in front of the appellant in the centre lane at the time that the appellant cut into the kerbside lane. Secondly, that Mr Swan's evidence did not exclude the possibility another car was travelling in the centre lane when the appellant merged into and was travelling in the kerbside lane.

In my view there was no inconsistency between Mr Reyes' evidence at trial and his statement. I have already set out the relevant extracts from his statement: at [49]. It is apparent that Mr Reyes was consistent in saying the black car was always in the kerbside lane - it was the investigator who asked about a vehicle in the "middle lane." Mr Reyes was adamant the black car was "always in the left lane."

I also do not accept that Mr Swan's evidence supported the appellant. It has to be understood in context. He was clear that from his elevated position in his truck, he did not see another vehicle come across in front of the appellant. Further, Mr Swan's statement recorded his estimate of the length of time the appellant was in the kerbside lane before he "went into the gutter" as "Oh, two seconds ... a second, yeah" (Q.111) and, significantly, the next question and answer were:

"Q.112 And so it was virtually as he changed?

A. As he changed, he went in, yeah."

At the hearing, when asked about questions 111 - 112, he said:

"A. Total seconds - well, from when he come outside the car to hitting the gutter, it's probably about a second."

Properly understood, rather than taken in isolation, Mr Swan's evidence did not support the proposition that the appellant travelled forward in the kerbside lane, otherwise than during the rapid movement which had commenced in the centre lane and culminated in his collision with the kerb.

In my view neither Mr Reyes or Mr Swan's account support the appellant's version of the accident. Both described an incident which commenced in the centre lane when the appellant accelerated then, in substance, slewed across the kerbside lane. Each illustrated in their diagrams drawn out of court, the appellant veering from the centre lane and slewing across the kerbside lane in one sequence prior to the point of impact. The appellant's version stood in stark contrast, depending on him having been travelling straight in the kerbside lane before the movement of a vehicle his path leading to his loss of control.

E. The plaintiff was still travelling in the centre lane well past Vale Street

Appellant's submissions

The appellant's case at trial was that he had merged into the kerbside lane before he reached the intersection of Vale Street with Cabramatta Road.

Mr Campbell accepted that the appellant had given evidence which supported the primary judge's finding that he "was adamant that he changed lanes before Vale Street": primary judgment (at [21]). However he criticised the primary judge's statement that "both Mr Reyes and Mr Swan placed [the appellant] in [the] centre lane well past Vale Street": primary judgment (at [21]).

Mr Campbell submitted that neither witness mentioned the words "Vale Street". The closest they came, he argued, to identifying the appellant's position by reference to Vale Street was when Mr Reyes labelled the diagram he drew at trial of the area surrounding the scene of the accident and identified Vale Street as having been to the west of the position where he drew the appellant's motorcycle before it veered, on his version of the accident, into the kerbside lane.

Next, Mr Campbell contrasted Mr Reyes' trial diagram (which contained no scale) with that he marked in April 2007, which did contain a scale, although, as the appellant's written submissions conceded, it was unclear whether Mr Reyes knew this. However, apparently applying that scale, the written submissions calculated that the diagram showed the motorcycle in the centre lane some 24 metres past Vale Street. On this basis and having regard to the finding that the appellant was travelling at 60 kph, Mr Campbell contended Mr Reyes' evidence amounted to the proposition that the appellant was in the centre lane for 1.5 seconds longer than the appellant recalled.

Mr Campbell's analysis of Mr Swan's evidence was based on the proposition that, when taken with his statement to the investigator that the accident occurred "probably 5 to 10 metres" past an unmarked street on the diagram (which it was accepted must be Vale Street), and his evidence concerning the time the appellant had been travelling in the kerbside lane prior to the accident (referring, again, to question 111 in Mr Swan's statement - see [66] above) the appellant was in the kerbside lane approximately 50 metres before Vale Street.

Accordingly, Mr Campbell contended that the primary judge's inference that the appellant was travelling in the centre lane "well" past Vale Street was erroneous.

Respondent's submissions

Mr Bartlett argued, in short, that there was no evidence of anybody having actually measured the distance past the Vale Street intersection to where the accident occurred, but that the primary judge's description of the appellant's position at the time was supported by the evidence.

Insofar as there were any attempts to measure distances to the east of the Vale Street/Cabramatta Road intersection, he drew attention to Constable Attard's estimate that Vale Street was 30 to 40 metres west of the power pole sign where the appellant finally came to rest. The appellant, when being asked how far after Vale Street the accident happened, said "probably 50, 80 metres or so."

Although they were not asked to estimate distances, Mr Bartlett submitted both Mr Reyes and Mr Swan saw the appellant still in the centre lane past Vale Street. Even if they did not mention the street by name, neither suggested that they saw the appellant move from the centre to the kerbside lane at an intersection. The diagrams each drew were consistent with their evidence, depicting the appellant's lane change as having occurred past the intersection.

Consideration

In my view this challenge to the primary judge's inference could, at best, be described as nitpicking. Any finding that the appellant was travelling in the centre lane past Vale Street is sufficient to contradict the appellant's version of the accident. Both Mr Reyes' and Mr Swan's evidence had the appellant travelling in the centre lane immediately prior to the accident occurring. Both drew a diagram in which Vale Street was marked as to the west of the point where the appellant started moving into the kerbside lane. It was never put to either of them that they saw the appellant in the centre lane some time before the intersection with Vale Street and Cabramatta Road.

In my view, whether or not the primary judge was correct to invoke the adjective "well", the underlying finding, that the appellant was travelling in the centre lane past Vale Street supported his ultimate conclusion that he should prefer Mr Reyes' and Mr Swan's evidence to the appellant's version of the accident.

F. The plaintiff was travelling in the centre lane immediately prior to him losing control of his motorcycle

Appellant's submissions

The challenge to this finding is at the heart of the appeal. The primary judge's conclusion that the appellant was travelling in the centre lane immediately prior to him losing control of his motorcycle, as I have said, and as the appellant accepts, "fatally contradicted" his version of events. It involved rejecting the appellant's evidence that he had "merged comfortably into the [kerbside] lane" prior to the accident - about 30 to 40 metres before.

Mr Campbell's submission that the primary judge erred in making this finding depended upon the appellant's version of the accident, what he argued was Constable Attard's corroborative evidence that the appellant was in the kerbside lane for a period of time prior to the accident and the contention that Mr Swan had said the appellant was travelling in the kerbside lane for between one or two seconds prior to losing control of his motorcycle.

This evidence, it was argued, "completed a formidable trilogy as to the period the plaintiff spent in the kerbside lane prior to losing control of his motorcycle." The written submissions cited the appellant's evidence as to how far before the accident he had merged into the kerbside lane (30 - 40 metres), combined with Mr Swan's "two seconds" evidence and the finding of the speed at which the appellant was travelling (60 kph) to place the lane change (using Mr Swan's upper limit of two seconds) at the approximate distance (33.33 metres) from the accident the appellant had estimated.

Respondent's submissions

Mr Bartlett submitted that the complaint about this passage in the primary judgment appeared to be in effect a re-statement of the factual matters set out in relation to the first three specific complaints and relied upon his submissions in relation to each. In short he contended that his Honour's statement was an accurate account of the evidence of Mr Reyes and Mr Swan

Consideration

I have dealt elsewhere with the extent to which Constable Attard's account of the accident can be said to support the appellant's version (at [171] ff]). In short, in my view, it could not. It depended upon both hearsay (the communication of the appellant's apparent explanation of what he said had happened via people who were at the scene when Constable Attard arrived) and Constable Attard's failure to analyse critically the statements which had been given to him. The repeated assertion concerning Mr Swan's "two seconds" evidence cannot stand when that evidence is properly understood, namely that there was only one rapid movement whereby the appellant moved rapidly from the centre to the kerbside lane.

The difficulty with the appellant's attempt at a rigorous mathematical analysis of the scene is that there was no evidence of any precise measurements at the scene save to the extent that when Constable Attard realised his original estimate that the accident took place 500 metres from the intersection with the Hume Highway was incorrect, he remeasured that distance as 120 metres. There was, however, no measurement of the distance from the point of the accident to Vale Street. Further it was apparent the appellant had little idea which street Vale Street was. He gave evidence at one point that the accident happened before Vale Street. He could not say for how long in either distance or time he claimed he had been travelling in the kerbside lane before the accident happened, although he did say, "I was on the number one lane comfortably". When given another opportunity to say how far before the accident he had been travelling in the kerbside lane, he said he could not remember.

The vagueness of this evidence was in stark contrast to that of Mr Reyes and Mr Swan of the appellant suddenly veering from the centre to the kerbside lane. I would accept the respondent's submissions that the primary judge's statement was an accurate account of Mr Reyes' and Mr Swan's evidence and that nothing in the appellant's, Constable Attard's or Mr Swan's disturbs it.

G. The vehicle travelling in the centre lane in front of the plaintiff remained in the centre lane after the plaintiff lost control of his motorcycle

Appellant's submissions

Mr Campbell's next criticism was of the inference he submitted the primary judge drew from Mr Swan's evidence that "the car in front kept going, but remained in the centre lane ": primary judgment (at [17]) (emphasis added). He submitted that that inference could not drawn from Mr Swan's evidence when asked what the car in front of the motorcycle did and his response "I think he kept going after the motorbike crashed, I don't know if he came back or not" and the fact that he could not remember whether "he changed into the kerbside lane".

Even though this evidence related to Mr Swan's observation of events after the accident, Mr Campbell submitted that the primary judge's erroneous inference was critical to his ultimate finding that the appellant was not cut off by an unidentified vehicle. He argued that the primary judge's use of the conjunction "but", rather than "and" "served to import into Swan's evidence an additional notion of consequence."

Mr Campbell argued that had the primary judge not distracted himself with this erroneous conclusion, he would have placed more weight on the appellant's evidence about the black car which, he contended, was supported by Mr Reyes' evidence that he saw a black car in the kerbside lane.

Mr Campbell relied, in making this submission, on the proposition that from Mr Swan's perspective (10 to 15 metres from the accident) ahead of Mr Reyes (30 metres from the accident), he would not have seen the vehicle he saw in the centre lane move into the kerbside lane, whereas the latter's observation of a black vehicle in the kerbside lane was consistent with the appellant's account. He suggested Mr Swan's diagram did not depict the position of the car he saw travelling in front of the appellant perhaps because it had already passed him.

Respondent's submissions

Mr Bartlett made three points about this submission.

First, that the inference Mr Campbell challenged was not a finding but, rather, a statement of Mr Swan's evidence to the effect that apart from seeing the motorcycle move from the centre to the kerbside lane, he did not see any other vehicle change lanes around the motorcycle at that time.

Secondly, he contended that Mr Swan's evidence was consistent that he did not see any vehicle cut the appellant off but, rather, saw him speed out and hit the gutter, while the car which he had seen in front of him in the centre lane continued to drive "down the road as normal".

Thirdly, he pointed out that the appellant's case at trial was never that Mr Reyes' and/or Mr Swan's versions of the accident were in some way consistent with his, rather, that the appellant's version should be accepted over their evidence. The respondent contended the appellant ought not be permitted to advance on appeal a case not advanced at trial: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (at 7 - 8); Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 (at 497).

Consideration

As the respondent submits, this submission does not accord with the evidence. Both Mr Swan and Mr Reyes said they saw the entire incident in which the appellant moved from the centre lane to the kerbside lane up to his collision with the pole. The appellant's submission seeks to cast Mr Swan's evidence in a light which in my view is not open. It was not suggested to him at trial that his diagram did not include the centre lane car for the reasons the appellant now suggests. Rather, his evidence in chief that he saw the centre lane vehicle "driving down the road as normal" and that he did not see any other vehicles changing lane around the motorcycle at the time was not challenged in cross-examination.

Moreover, as the respondent submits, Mr Reyes' evidence was consistent that the black car he saw was always in the kerbside lane before the accident and at a time when the appellant was travelling in the centre lane.

In my view the challenged finding was open to the primary judge.

H. The police diagram was consistent with the defendant's version of the accident

Appellant's submissions

Mr Campbell submitted that the primary judge's conclusion (at [21]) that the police diagram was consistent with the respondent's version of the accident was erroneous and was not supported by, or was against, the weight of the evidence.

He relied in this respect not so much on what the diagram depicted as on what Constable Attard said it was intended to depict, on what he recorded in his Event Report (see [89] above) and his evidence at trial that after the appellant moved from the centre lane, he had "driven straight for some distance ... then ... gone into the kerb". He submitted that Constable Attard's diagram was also consistent with the version of the accident he set out in the Case Report to the effect that "it is believed by Police that [the plaintiff] was cut off by an unknown black vehicle."

Mr Campbell contended that the diagram should be understood in the context of Constable Attard's protestations that he was "not the best drawer" - a statement I note Constable Attard made in response to a suggestion that his depiction of a sign was not easily so understood.

Mr Campbell also challenged the primary judge's use of the diagram on the basis that his Honour used it impermissibly as direct evidence to reject the appellant's case. At the same time, he contended that it was a business record and therefore, I assume, evidence of the fact, when taken with Constable Attard's oral explanation which he argued supported the appellant's case.

Respondent's submissions

Mr Bartlett submitted that the primary judge's statement had to be understood in context. As appears from the primary judgment (at [21]), his Honour's statement concerning the diagram followed his recounting of Mr Reyes' and Mr Swan's evidence to the effect that neither said there was a car in the centre lane beside the appellant when the latter was in the kerbside lane but, rather, that the appellant was in the centre lane immediately before losing control of his motorcycle and veering left across the kerbside lane into the gutter. Thus, to the extent that the diagram showed the accident as having commenced in the centre lane, it did not accord with the appellant's version of events. That view is also supported, the respondent contended, by the fact that Constable Attard's diagram did not depict the involvement of any other vehicle.

Next, Mr Bartlett contended that the diagram was consistent with the versions of the accident both Mr Reyes and Mr Swan said they gave to the police officer at the scene of the accident, with their statements to the insurance investigator and their evidence in the trial.

Consideration

In my view the primary judge did not use the diagram impermissibly. I repeat for convenience the reference his Honour made to it:

"21... Both men had a clear, uninterrupted view of plaintiff on his motorcycle in the seconds leading up to the accident, and the accident itself. Neither said there was a car in the centre lane beside the plaintiff in the kerbside lane. Both accounts were consistent on the key aspects of the accident, firmly placing the plaintiff's motorcycle in the centre lane immediately before he lost control of his motorcycle and veered suddenly left, directly across the kerbside lane, into the gutter. That version is consistent with the diagram in the notebook of the investigating police officer, which the plaintiff adopted as accurate..."

Mr Campbell's "direct evidence" argument was based, analogically, on the use of photographic evidence. Although, as Spigelman CJ has commented, "[i]t is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given" ( Blacktown City Council v Hocking [2008] NSWCA 144 (at [7])), the prevailing view appears to be that photographs cannot trump the testimonial evidence, but, rather, can be used by the tribunal of fact to determine "which of the explanations given by the witnesses appears to be most worthy of acceptance": C Van der Lely NV v Bamfords Ltd [1963] RPC 61 (at 71) per Lord Reid cited with approval by Tobias JA in Blacktown City Council v Hocking (at [167]); see also Angel v Hawkesbury City Council [2008] NSWCA 130 (at [71] - [72]) per Beazley and Tobias JJA (Spigelman C Giles and Campbell JA agreeing).

The analogy between photographs and a crudely drawn diagram such as appears in Constable Attard's notebook is, in my view, tenuous. However, even accepting Mr Campbell's submission, I do not agree that the primary judge used the diagram impermissibly. Rather, it is apparent his Honour used the diagram as assisting him to accept the independent witnesses' evidence concerning the accident. Their evidence was based on their observations, whereas Constable Attard's account was hearsay and its sources were not identified.

It might also be noted that his Honour also observed that the appellant had accepted the diagram "as accurate". That was so, at least until the cross-examiner pointed out to him that the line drawn on the diagram commenced past Vale Street. However, in my view, the primary judge was entitled to rely upon the appellant's first reaction to the diagram as genuine.

Mr Campbell's argument that the diagram was a "business record" for the purposes of s 69 of the Evidence Act , a proposition the respondent did not contest, might again be accepted - as far as it goes.

For the purposes of the Evidence Act , "document" means any record of information, including a drawing: Pt 1, Evidence Act Dictionary.

Although there was no express evidence to this effect, it is an available inference that the diagram was presumably prepared to record the circumstances of the accident as Constable Attard understood them and formed part of the records "kept by" him for the purposes of his duties in the Police Force. It might be accepted that the Police Force is a "business" for the purposes of the Evidence Act , being "an activity engaged in or carried on by the Crown": Pt 2, cl 1, Evidence Act Dictionary; see generally Police Act 1990; Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44. The diagram records a "previous representation" (s 69(1)(b)), being the representations made to Constable Attard at the scene of the accident which, accordingly, were "made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced": Pt 1, Evidence Act Dictionary. Those representations were made by persons, it can again be inferred, Constable Attard identified as witnesses and might, accordingly, "reasonably be supposed to have had personal knowledge of the asserted fact": s 69(2), s 69(5), Evidence Act .

The effect of the diagram constituting a business record is that the hearsay rule does not apply (s 69(2)) and, accordingly, the "previous representation(s)" reflected in the diagram are admissible "to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation": s 59(1), Evidence Act .

For the purposes of determining under s 59(1) "whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made": s 59(2A).

The evidence of the circumstances in which the previous representations were made does not, in my view, assist the appellant. First, Constable Attard did not speak to the appellant prior to preparing the diagram. The diagram was based on what he was told at the scene. Secondly, it is notable that Constable Attard did not record in narrative terms the words any witness said to him - or even record on whose statements his diagram was based. However both Mr Reyes and Mr Swan said they spoke to him. It can be inferred, in my view, that they recounted to him the version of the accident they communicated to the insurance investigator and at trial: in essence, as the primary judge found (at [21]), "placing the plaintiff's motorcycle in the centre lane immediately before he lost control of his motorcycle and veered suddenly left, directly across the kerbside lane, into the gutter". It is apparent that that is what is depicted in the diagram.

Although Mr Reyes said he heard "people say the black car cut in front of [the appellant] at the scene" (see [61]), he added that they did so "after [the appellant] said it". Whether or not Constable Attard was told that version of the accident is unknown. However, if he was, it is remarkable that his diagram did not depict the involvement of that (or any) other vehicle. On Mr Reyes' and Mr Swan's evidence, no other vehicle was involved. Constable Attard could not recall what any "specific witness" told him at the scene. Curiously, Constable Attard's Event Report (see [89]) did record a version of the accident more consistent with the appellant's version, but that, in my view, is open to the inference, in the light of Mr Reyes' evidence about the circumstances in which others started recounting the "black car" version of events, that that was hearsay based on the appellant's statements to concerned bystanders rather than what any such person saw. For the reasons which appear in the following paragraph, it is improbable that he obtained that version from Mr Swan or Mr Reyes.

Constable Attard's statement at trial that he did not receive any different version to that the appellant subsequently recounted to him at the hospital has to be weighed in the light of the independent witnesses' evidence and the diagram. They are irreconcilable to the extent that the latter shows the accident commencing in the centre lane without the involvement of another vehicle and apparently in a sudden movement across the kerbside lane, whereas the appellant's version given to Constable Attard on 27 July 2006 was that the he was in the kerbside lane when a car from the centre lane moved quickly into the kerbside lane and "next thing I knew I was on the ground". I would add that it would be remarkable, bearing in mind that Constable Attard did not speak to the appellant at the scene, if the diagram recorded a witness having observed him change lanes which on his case occurred before Vale Street - or that any such witness would have regarded his lane change as more significant than the involvement of another vehicle - whose absence from the diagram I have already remarked upon. In my view it was open to the primary judge to regard the diagram as supporting Mr Reyes' and Mr Swan's evidence.

Finally, I turn to Mr Campbell's reliance on Constable Attard's statement that the diagram records the appellant as having "driven straight for some distance...", a statement relied upon as supporting the appellant's evidence that he had been in the kerbside lane for some period before the accident. Constable Attard did not record any narrative statement to that effect in any of the records he made of the accident. He did not know the distance the appellant may have gone straight. His statement has to be weighed in the light of the evidence overall. In the light of its depiction of the accident as having commenced past the Vale Street intersection and in the centre lane without any other vehicle indicated, the statement does not in my view detract from the primary judge's conclusion that it was consistent with the independent witnesses' evidence. Indeed, it might also be observed that Constable Attard's diagram was consistent with the diagram drawn by the independent witnesses insofar as it depicted the motorcycle's trajectory.

I would reject Mr Campbell's criticisms of the primary judge's use of the diagram.

I. The plaintiff was not cut off

Appellant's submissions

The appellant accepted that both independent witnesses gave evidence they did not believe the appellant was cut off by an unidentified car. However Mr Campbell submitted that cross-examination revealed that both their evidence in this respect was based on their assumptions that they were sure the other car would have stopped if that had happened. In addition, he argued that Mr Swan was equivocal in his interview with the investigator as to whether or not another vehicle may have cut the appellant off. He also relied on Mr Swan's evidence at trial that one explanation for what appeared to Mr Swan to be the appellant's sudden loss of control could be that "another vehicle had tried to come across in front of him".

Accordingly, the appellant submitted that the trial judge's inference that both independent witnesses were "firm" that there was no other car involved, causing the appellant to veer or swerve and that he was not cut off was erroneous and was not supported by, or was against the weight of, the evidence.

Respondent's submissions

The respondent submitted that the primary judge's finding was an accurate statement of the effect of the independent witnesses' evidence.

Consideration

In my view the primary judge did not err in reaching the challenged conclusion. Contrary to the appellant's submissions, the overwhelming weight of each independent witnesses' evidence was that he did not see another car cut off the appellant but, rather, saw him veer suddenly to the left across the kerbside lane in the manner indicative of a loss of control. Whether or not their ex post facto rationalisation may appear tenuous, it does not, in my view, detract from their evidence taken as a whole.

Conclusion

I would reject the first ground of appeal.

GROUND 2

The appellant's second ground of appeal complains that the primary judge erred in not accepting his version of the accident. The essence of the argument in this respect was that he had consistently said that his accident was caused by his being cut off by a black car, that he was incapable of fabricating his version of the accident and that it did not amount to a subsequent invention or rationalisation. It is convenient to deal with the latter proposition first before returning to the first argument advanced in support of this ground of appeal namely, that the evidence provided overwhelming support for the appellant's version of the accident.

As to the last proposition, the appellant submits that he gave his version of the accident immediately after it occurred and has maintained it ever since. He relies in this respect on Mr Reyes' evidence to which I have already referred, as well as what he contends was Mr Reyes' concession that he heard other people at the scene say the same thing. He also relies on Mr Swan's evidence to like effect. Insofar as events after the 5 July 2006 are concerned, he relies upon his statement to his father within three or four days of the accident, the statement recorded by the social worker on 12 July 2006 and his statement to Constable Attard on 27 July 2006. He also relies upon Constable Attard's evidence that he was never given a version of the accident which differed from the one the appellant recounted. Finally, he contends that given that evidence, doubt ought to have been cast on the reliability of Mr Reyes' and Mr Swan's evidence having regard to the fact that each said he spoke to Constable Attard at the scene.

The latter proposition can be dealt with succinctly. First, it was never put to either Mr Reyes or Mr Swan at trial that either had given Constable Attard a version of the accident which differed from that they gave to the investigator and at trial. Secondly, Constable Attard's diagram reflected their version of the accident. Thirdly, Constable Attard was, at best, equivocal about whether he had ever received another version of events - first saying he could not recall, then that he had not. It was a matter for the primary judge to evaluate which, if either, of those accounts was to be accepted and weigh it against all the evidence.

Insofar as the appellant relies upon the remarkable consistency with which he submits he reported the involvement of an unidentified vehicle over succeeding years, I make the following observations. First, it is hardly remarkable that once the appellant gave a version of the accident, he stuck to it. Secondly, there is an interesting variation between the accounts recorded by subsequent historians. If those statements are taken at face value as the appellant contended they should be, then the versions vary between the appellant's motorcycle having actually been struck by a car merging from his right side into his lane (see for example, Dr Teychenne, Dr Lee, Dr Sun, Dr Haertsh) and that he was forced off the road (see for example the social worker on 12 July 2006 and Dr Walker's report). That rather underlines the primary judge's conclusion that the appellant's account suffered from inconsistencies.

It appears that the appellant did say at the scene of the accident that he was cut off by another vehicle. However, as the appellant's counsel conceded at trial, he could not prove that a statement to that effect " originated from someone else's mouth".

It is, in my view, not open to the Court either to conclude that the appellant was incapable of fabricating his version of the accident or that his version of the accident did not amount to a rationalisation. The submission invokes questions of philosophy and perhaps psychiatry, which, no doubt, do not admit of any one answer. Suffice it to say that the appellant's account of the accident, even if stated immediately upon its occurrence, was not incontrovertible evidence which compelled his Honour to find in his favour. It was controverted by the evidence of the independent witnesses who had given substantially consistent accounts of the critical elements of the accident. The primary judge had to weigh up all the evidence, which included his impression of the witnesses as they gave their evidence, to determine whether the appellant had discharged the burden of proving the accident more probably than not occurred as he contended. This included weighing up the apparent consistency of the appellant's account of the vital event, against the inconsistencies in his evidence to which the primary judge referred, including his acceptance of Constable Attard's diagram. I would add to the matters to which the primary judge referred, the appellant's apparent inability to explain the mechanism of the accident, for example why he could not avoid the other car, his inability to remember seeing the other car before it was next to him (even though he had been looking in his rear vision mirror), or remember any other vehicles in the vicinity, or the pedestrian struck by his motorcycle. In my view, it was open to his Honour to conclude the appellant had not discharged his burden of proof.

Finally, the appellant also relied, in support of Ground 2, on the fact that and that the evidence clearly established the presence of an unidentified black car in the immediate vicinity of the accident. Once again, so much might be accepted. However, again, both independent witnesses said they did not see any other vehicle involved in the appellant's accident.

I would reject the second ground of appeal.

GROUND 3

Finally, the appellant contended that the primary judge failed to provide adequate reasons for preferring the respondent's version of the accident. He contended that the requirement for his Honour to do so was even greater in circumstances where his Honour had accepted the evidence of the appellant and Constable Attard over that of the independent witnesses on aspects relevant to the circumstances of the accident. I have already dealt with, and rejected, the appellant's submission to this effect.

Insofar as Mr Campbell submitted generally that the primary judge failed to explain why the appellant's evidence should not be accepted, the answer shortly is that his Honour in my view clearly explained that the independent witnesses' evidence was consistent on the "key aspects", including Constable Attard's diagram, the appellant's recollection (such as it was) demonstrated inconsistencies and, implicitly, that the appellant had an interest in the outcome: see primary judgment (at [21]). It was not necessary that he find the appellant was a liar in order to conclude he had not discharged the burden of proof.

Otherwise the appellant did not expand upon the absence of reasons submission. In my view the primary judge's reasons did justice to the issues posed by the parties' cases at trial and did, with admirable brevity, explain why he preferred one case over the other. The fact that his Honour did not refer in the same meticulous detail as did the appellant's written submissions to the evidence did not indicate that he failed to discharge his duty to give reasons. His Honour did not, in my view, fail to examine any evidence critical to an issue in a case: Waterways Authority v Fitzgibbon (at [130]); see generally Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [58] - [62]).

ORDERS

I propose that the appeal be dismissed with costs.

CAMPBELL JA: I agree with McColl JA.

SACKVILLE AJA: I agree with the orders proposed by McColl JA and with her Honour's reasons.

**********

Decision last updated: 29 July 2011

Medium Neutral Citation:	Tran v Nominal Defendant [2011] NSWCA 220
Hearing dates:	18 August 2010
Decision date:	29 July 2011
Before:	McColl JA at [1]; Campbell JA at [202]; Sackville AJA at [203]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - motorcycle accident - whether unidentified vehicle caused plaintiff's accident APPEAL - appellate review of findings of fact - whether errors in process of fact-finding - where primary judge rejected plaintiff's version of accident and accepted independent witness' account -whether primary judge's findings glaringly improbable or contrary to compelling inference EVIDENCE - use of police diagram - whether used impermissibly as direct evidence EVIDENCE - business record - whether diagram drawn by police officer a "business record" - whether admissible to prove the existence of a fact - ss 59(1) and 68, Evidence Act 1995
Legislation Cited:	Evidence Act 1995 Motor Accidents Compensation Act 1999 Police Act 1990
Cases Cited:	Angel v Hawkesbury City Council [2008] NSWCA 130 Blacktown City Council v Hocking [2008] NSWCA 144 C Van der Lely NV v Bamfords Ltd [1963] RPC 61 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jackson v Lithgow City Council [2010] NSWCA 136 Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Category:	Principal judgment
Parties:	An Phan Tran - appellant Nominal Defendant - defendant
Representation:	S Campbell SC with M Maxwell for the appellant R R Bartlett SC for the respondent Brydens Law Office - appellant Lee & Lyons - respondent
File Number(s):	CA 2009/298576
Publication restriction:	No
Decision under appeal	Citation: Tran v Nominal Defendant [2009] NSWDC 281 Date of Decision: 2009-09-02 00:00:00 Before: Johnstone DCJ File Number(s): DC 779 of 2008

JUDGMENT
BACKGROUND
Statement of the case	[6]
The primary judgement	[11]
Notice of appeal	[15]
THE TRIAL	[17]
The appellant's version of the accident	[18]
The appellant's accounts to medical practitioners	[31]
Mr Reyes	[45]
Mr Swan	[62]
Constable Attard	[80]
SUBMISSIONS
GROUND 1
A. Appellant's overarching submission: error in the process of fact finding	[94]
B. Constable Attard's evidence	[99]
C. The defendant's witnesses had a clear, uninterrupted view of the plaintiff on his motorcycle in the seconds leading up to the accident
Appellant's submissions	[108]
Respondent's submissions	[113]
Consideration	[117]
D. There was no vehicle travelling in the centre lane beside the plaintiff whilst the plaintiff was travelling in the kerbside lane
Appellant's submissions	[121]
Respondent's submissions	[125]
Consideration	[128]
E. The plaintiff was still travelling in the centre lane well past Vale Street
Appellant's submissions	[136]
Respondent's submissions	[142]
Consideration	[145]
F. The plaintiff was travelling in the centre lane immediately prior to him losing control of his motorcycle
Appellant's submissions	[147]
Respondent's submissions	[150]
Consideration	[151]
G. The vehicle travelling in the centre lane in front of the plaintiff remained in the centre lane after the plaintiff lost control of his motorcycle
Appellant's submissions	[154]
Respondent's submissions	[158]
Consideration	[162]
H. The police diagram was consistent with the defendant's version of the accident
Appellant's submissions	[165]
Respondent's submissions	[168]
Consideration	[171]
I. The plaintiff was not cut off
Appellant's submissions	[185]
Respondent's submissions	[187]
Consideration	[188]
Conclusion	[189]
GROUND 2	[190]
GROUND 3	[198]
ORDERS	[202]