Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : NANKIVELL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2015] WADC 135

Tort - Negligence - Motor vehicle accident - Appellant claimed damages for personal injuries - Appellant alleged that the accident occurred as a result of the negligence of the unidentified driver of another vehicle - Trial judge dismissed the appellant's claim - Whether the trial judge erred in his fact-finding in relation to the accident

Adamson v Ede [2009] NSWCA 379

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498

Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840

Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150

Chanaa v Zarour [2011] NSWCA 199

Merrey v The State of Western Australia [2010] WASCA 62

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359

R v Birks (1990) 19 NSWLR 677

Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Stern v National Australia Bank Ltd [2000] FCA 294; (2000) 171 ALR 192

Village Cay Marina Ltd v Acland [1998] BCC 417

Williams v Dawson [2000] WASCA 205; (2000) 31 MVR 559

Williams v The Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255

1 BUSS P: The appellant appeals against a judgment of Fenbury DCJ.

2 After a trial on 14 May 2015, his Honour dismissed the appellant's claim against the respondent for damages for personal injuries sustained in a motor vehicle accident.

3 I would dismiss the appeal. My reasons are as follows.

The application for an extension of time to appeal

4 At the hearing of the appeal, the court granted the appellant an extension of time to file the appeal notice. The respondent did not oppose the grant of an extension. The delay in filing the appeal notice was explained adequately. In the circumstances, it was just to grant the extension.

The facts and circumstances of the motor vehicle accident

5 The appellant was the only witness called at the trial.

6 On 22 July 2011, at about 2.00 pm, the appellant was driving a prime mover in a southerly direction in the outer lane of the Kwinana Freeway when he was involved in an accident.

7 According to the appellant, as a result of the negligence of the unidentified driver of a small car, he was forced suddenly to take evasive action. The appellant lost control of the prime mover and it rolled over. He suffered a number of soft tissue injuries. The driver of the small car did not stop.

8 At the time of the accident, the appellant was aged 61 years. He had about 32 years' experience of driving multi-combination trucks. His driver's licence entitled him to drive a prime mover pulling 'up to three or four trailers'.

9 On the day in question the appellant was not suffering from fatigue. His employer had directed him to drive the prime mover to Mandurah. The road surface was dry. The appellant's sitting position in the prime mover was elevated significantly above the sitting position of drivers of ordinary passenger vehicles. At all material times he had a clear view of the road ahead and of any smaller vehicles in front of him.

The appellant's evidence at the trial and his prior inconsistent statements

10 The trial judge set out in his reasons relevant extracts from the appellant's evidence at the trial.

11 The appellant gave the following account in evidence-in-chief of the critical events:

... can you explain to the court what has happened since - you've got past the Armadale Road, you're still following this Mitchell's truck. Can you - can you explain now the circumstances leading up to the accident?---Yeah, I looked in the mirror and - I always look in there. And I seen this silver - little silver car come up - and I thought (indistinct) behind or do whatever, but he was - he was going pretty fast. And he got in front of the truck and just sat there on the - in the right lane. I was in the left lane.

...

Okay. So the car has got in front of you in the right-hand lane. What's - what has happened then?---Must have been - I don't know approximately a minute and a half, two minutes, he sat out there for and all of a sudden he was in front of me.

What speed do you estimate the defendant was driving at?---Well, it'd be approximately around the hundred.

And you say he got in front of the truck, is that without warning?---Yeah, no indication, nothing.

And he's got in front of the truck, and then what's occurred?---He stopped on the brake lights [sic]. (Indistinct) stopped in front of me.

And what was your reaction?---I'm not allowed to say that here. Well, I hit the brakes and tried to swerve to my left to go round him but as soon as the front left wheel hit the sand it bogged down and the truck span around and rolled over.

...

[The appellant], could you please explain in your own words what was the cause of your accident?---The other driver cutting across in front of me without any indication and braking suddenly.

And you were - and you were unable to stop, is that correct, in a safe manner?---If I'd stopped I'd most probably have run into him. If I'd braked - kept on going straight I would have actually run into him.

...

... [The appellant], you understand it is the defendant's position that this accident was attributable to your negligence in either failing to keep a proper lookout, or travelling too close to the vehicle in front, and that you are responsible for the injuries sustained to yourself, no other person? What do you have to say about that?---Not really, because I - I know where the truck in front of me was going, and I was just going to sit behind, because I was in no rush to get down there and get back. And that's all I had to do on that Friday, and go home early and most probably leave Saturday afternoon back to Port Hedland again.

...

And you say that you wanted to get the job done, is that correct?---Yeah, I just - I had all afternoon to do it.

So you were in no rush?---Nuh.

And just - just finally, just for clarity's sake, what is it that you say caused this accident?---The person driving the little silver motorcar that cut in front of me, without any warning.

And why did they brake?---Well, I'm still trying to work that out today. I don't know why (ts 8, 9, 24, 27, 28).

12 The appellant said in cross-examination that the prime mover weighed between 9 and 10 tonnes and was about 6.5 m in length (ts 30).

13 Counsel for the respondent cross-examined the appellant as to the appellant's application of the prime mover's brakes when the small car allegedly cut in front of him:

Would you agree with me that you didn't apply your brakes at the same time as the vehicle in front of you, did you?---As soon as I seen his brake lights come on, I did.

Okay. You'd agree with me, I take it, that it might take you a second or two to react to seeing the brake lights come on?---Yes.

Yes. It's common sense?---Yeah (ts 31).

14 Counsel for the respondent put to the appellant various calculations as to reaction distance based on the appellant's evidence that he was travelling at 90 to 95 km per hour. Counsel then suggested to the appellant that, on his version of events, he could not possibly have avoided the small car upon the unidentified driver applying the car's brakes when it was about 8 - 10 m in front of the prime mover (ts 31 - 32). The appellant rejected the suggestion (ts 32).

(a) when he applied the prime mover's brakes he swerved to the left because he thought he could not stop;

(b) he did not know whether the unidentified driver of the small car had merely touched the car's brake pedal or had braked hard; and

(c) as soon as he saw the small car's brake lights he applied the prime mover's brakes (ts 32, 33 - 34).

16 The appellant was cross-examined in relation to a Workers' Compensation Form dated 26 July 2011 (exhibit 3) which the appellant (with the assistance of Vanessa Townsend) completed and signed. In the form the appellant described the circumstances of the accident as follows:

Vehicle in front of me braked hard and suddenly causing me to do the same, to avoid hitting them, I had to swerve to the left, causing the truck to roll over.

17 The appellant agreed in cross-examination that in the form he did not mention that:

(a) the other vehicle suddenly '[came] across on the right-hand side';

(c) the other vehicle cut in between another truck and his prime mover (ts 47 - 48).

18 The appellant was also cross-examined in relation to the appellant's Employer's Report of Injury dated 27 July 2011 (exhibit 4) in relation to the injuries suffered by the appellant in the accident. The appellant accepted in cross-examination that he was likely to have provided the information in the report about the circumstances of the accident (ts 49). In the report the circumstances of the accident are described as follows:

While driving south on Kwinana Fwy a car travelling in front of the truck braked suddenly + hard, I braked to avoid hitting the car. I swerved to the left of the road, the left hand wheel (front) grabbed in the sand and caused the truck to roll over.

19 The appellant agreed in cross-examination that there was no reference in the report to a car having suddenly cut in front of the appellant's prime mover, the appellant's prime mover following another truck or a car having cut in between another truck and the appellant's prime mover (ts 51).

20 The appellant was also cross-examined in relation to an undated Crash Report Form (exhibit 6) which the appellant had completed about three weeks after the accident and sent to the respondent (ts 36). In the report the appellant described the circumstances of the accident as follows:

While traveling [sic] south on Kwinana Fwy on Friday 22 July 2011, in the left lane sit on 90 - 95 km, just after 14.00 hrs a car passed me, and got in front of the truck after a couple minutes it brake; I brake I could see I was going to hit the car, so I try to go the left of it. The left front wheel went to the sand and pull the truck around and rolled over. It had been raining early, not at the time of the accident. The car drove off.

21 The appellant agreed in cross-examination that he had made no reference in the Crash Report Form to the colour or body type of the vehicle that had allegedly cut in front of him whereas he gave evidence at the trial that the vehicle in question was a silver-coloured small car (ts 35).

22 The appellant was cross-examined further on his description of the circumstances of the accident as set out in the Crash Report Form, as follows:

You would agree with me there's nothing in there at all about a car cutting in front of you in the way that you've described in your evidence this morning?---No, just a car.

Yes. Nothing at all about it cutting in front of you?--- No, yeah.

Only being eight metres or so in front of your prime mover when it moved into your left lane, is there?---No.

No. There's also nothing in there at all about you following another truck, the Mitchell's truck that you've been talking about this morning, is there?---No.

No. And there's also no reference at all to the vehicle in front of you suddenly braking is there?---No.

...

And in this version in the crash report form you say you were following the car for two minutes?---It would have been - would have been two minutes.

Well, that's what the form says and I'm putting to you that that's - that's exactly what happened, you followed this vehicle for two minutes, you agree with that?---Well, if you say I have to, yeah.

...

What I'm putting to you, [the appellant], is that you did - you followed the vehicle for a couple of minutes, as you've indicated in this crash report form, before it put its brakes on?---The vehicle pulled in front of me and it was in front of me so I followed it.

Okay. For a couple of minutes?---Not for a couple of minutes (ts 36 - 37).

23 The appellant acknowledged in cross-examination that he had not ticked a box in part 17 item 3 of the Crash Report Form which he was required to fill in if he contended that the other vehicle was 'changing lanes' (ts 39 - 40).

24 A sketch drawn by the appellant on the Crash Report Form indicates that immediately before the accident both vehicles were travelling in the outer lane with one vehicle in front of the other, rather than one vehicle moving from the inner to the outer lane and cutting in front of the other.

25 The appellant was also cross-examined in relation to notes made on 22 July 2011 (exhibit 8) by Dr Judith Cubitt, a registrar at the Fremantle Hospital Department of Emergency Medicine. The notes record that the appellant presented to the Department on 22 July 2011 at 3.25 pm. He was discharged on that date at 5.33 pm. The notes include a description of the circumstances of the accident which the appellant agreed in effect that he had provided (ts 52 - 53). The description set out in the notes reads:

Restrained truck driver on the freway [sic] when car in front slowed suddenly. Breaked [sic], speed approx 80 and truck rolled onto side.

26 The appellant agreed in cross-examination that there was no reference in the notes to a car cutting in front of him, the appellant's prime mover following another truck or the car suddenly cutting in front of the prime mover and between the prime mover and another truck (ts 53).

27 The appellant further agreed in cross-examination that the description of the accident in the notes was consistent with the description of the accident in the Crash Report Form and inconsistent with the version of events which the appellant gave in evidence-in-chief (ts 53).

28 The appellant was also cross-examined in relation to a St John Ambulance Patient Care Record dated 22 July 2011 (exhibit 9). The Patient Care Record includes a description of the accident as follows:

Restrained driver of a truck, travelling at [approximately] 95 km/hr, which rolled onto driver's side & ? slid for several meters [sic] after emergency braking.

29 The appellant agreed in cross-examination that he gave that description of the accident to one of the ambulance officers when they attended at the scene of the accident and that there was nothing in the description about a car having cut in front of the appellant's prime mover (ts 55).

30 The appellant was also cross-examined in relation to a WorkCover WA Workers' Compensation First Medical Certificate dated 22 July 2011 (exhibit 10) which was signed by the appellant and Dr Cubitt. The certificate includes a description of the circumstances of the accident. The appellant agreed that he had provided the information in relation to the circumstances of the accident (ts 57). The description set out in the certificate reads:

Truck roll over avoiding car that braked suddenly.

31 The appellant agreed in cross-examination that there was no reference in the certificate to a car cutting him off from the right hand side (ts 57).

32 On 8 January 2013, about 18 months after the accident, the appellant signed a written statement as to the circumstances of the accident. The statement alleged, relevantly:

1. I was traveling at approximately 90 - 95 km/hour. I generally travel slightly below the speed limit. The speed limit was 100 km/hour.
2. There was another truck and trailer approximately 30 [metres] ahead of me.
3. In approximately June 2011 I received a $300.00 ticket for following too closely behind another vehicle and I was conscious of not travelling too closely behind another vehicle.
4. The traffic was light to medium on this day.
5. I had good visibility and I was sitting in an elevated position. I could see if cars indicated to change lanes.
6. I became aware of a late model silver hatchback travelling alongside of me.
7. I remember looking down and seeing the silver car. I do not recall any other details of the car but I believe it would have been 1 - 2 years old.
8. I estimate the silver car was alongside of me for around 20 seconds when suddenly the driver of the silver car passed me and then pulled in front of me from the right and when the silver car was approximately 8 [metres] in front of my prime mover the silver car braked really hard.
9. I estimate the silver car slowed to around 30 km/hour.
10. I panicked as I was worried I would collide with the silver car.
11. My immediate reaction was to apply my brakes to slow down.
12. My prime mover slowed to around 30 km/hour.
13. The accident happened very quickly. Suddenly I realised that if I do not do something quickly, I would likely collide with the silver car.
14. To avoid the risk of colliding with the silver car I veered to the left.
15. The silver car did not drift sideways from the right hand lane to my lane on the left. It was a sudden turn with no indication and no warning and I believe the driver of the silver car deliberately pulled in front of me and braked.
16. The left wheel of my prime mover hit the wet sand and pulled my truck around and the prime mover spun 180 degrees and landed in the bank facing the opposite direction I was travelling.

33 Counsel for the respondent put to the appellant that the account in par 14 of his written statement was inconsistent with the account in his evidence-in-chief (ts 44). In particular, counsel referred to the appellant's evidence-in-chief to the effect that the small car was alongside or in front of him for 1.5 to 2 minutes before the unidentified driver of the car cut in front of him, whereas in par 14 of his written statement the appellant alleged that the small car was alongside him for around 20 seconds (ts 44). The appellant accepted that there was 'a big difference between those ... two things' (ts 44).

34 The following exchange occurred between the appellant and counsel for the respondent in relation to the appellant's evidence-in-chief that the small car had cut in front of him, and the inconsistency between that evidence and the appellant's previous out of court statements:

If your version that you gave this morning is what actually happened, you would have been pretty frustrated and pretty annoyed and wanting to tell everybody that, 'Some bloke just cut me off' and is - has taken off, wouldn't you?---Yeah, I was pretty pissed but I was in more pain than I was annoyed (ts 55).

35 The appellant was unable in re-examination to explain why there was no reference in the documents created prior to his written statement dated 8 January 2013 to his allegation that the other vehicle cut across in front of him (ts 65, 67). In the prior documents it was asserted primarily that the other vehicle was in front of him and 'braked' or 'braked suddenly'.

36 The trial judge concluded that the appellant's claim should be dismissed because he had failed to prove that the unidentified driver of the small car was responsible for the accident.

It is clear ... that there is a significant difference between [the appellant's] descriptions of the accident prior to his January 2013 statement and what is contained in that statement.

To my mind if a truck driver was involved in an accident caused by a small passenger vehicle, without warning, cutting in front of him and then braking suddenly, there would very likely be significant emphasis on the vehicle's manoeuvre. The suddenness of the entry into the lane and the braking would be of the essence of what occurred in terms of causing the truck driver to take evasive action to deal with the sudden turn of events if not emergency.

The difficulty is that in the statements made by [the appellant] after the accident up until 18 months or so later, there is no reference at all to what he said in the witness box was the key or primary cause of the accident. In trying to contemplate why that is so it is hard to escape the suspicion, if not conclusion, that [the appellant] sought from January 2013 to improve his chances of success in the matter perhaps by embellishing the pre-trial written records.

[The appellant] gave sworn evidence and was cross-examined. He was a man of few words, however he gave his evidence in a satisfactory manner. The difficulty for him is the variation in his accounts about the cause of the accident in pre-trial statements.

In my view, if the accident occurred as [the appellant] says it did in his evidence, then it is inconceivable he would not have made mention of that in the documentation immediately post-accident. The fact that he did not causes me to have concerns about his version of the cause of the accident. This is not to say that I disbelieve he was injured in the accident and took evasive action, appropriately perhaps, in an emergency. However, to succeed in the action he has to satisfy the court that the reason this emergency arose was through the negligence of the defendant or, more exactly, the unidentified driver. Putting aside the issue of a sudden lane change followed by sudden braking by this very small car in front of a gigantic prime mover, the impression I get from the materials is that, probably, [the appellant] was either driving too close or was not concentrating before the vehicle in front of him braked. That seems to me to be the more likely cause of what occurred. I strongly suspect he was too close and as soon as the driver touched his brakes and his brake lights illuminated, [the appellant] over-reacted. The very fact he says he was going to hit the car suggests he was too close. There is insufficient evidence to find the driver of the car was negligent [28] - [32].

1. The trial judge erred in law in finding that the likely causes of the accident were [the appellant]:

(a) Driving too close to the vehicle in front of him;

(b) Driving without sufficient concentration;

(c) Over reacting to the illumination of the brake lights of the vehicle in front of him,

when such propositions were not put to [the appellant] during the course of evidence and there was no evidence to support such findings.

1. The trial judge erred in law in finding there were 'significant differences' or 'variation' between [the appellant's] descriptions of the accident made prior to January 2013 and the descriptions of the accident made in or after 2013 when there was no evidence to support such finding.
2. Alternatively, the trial judge erred in fact in finding that there were 'significant differences' or 'variation' between [the appellant's] descriptions of the accident made prior to January 2013 and the descriptions of the accident made in or after 2013 when that finding was against the weight of the evidence.
3. In assessing [the appellant's] oral evidence at trial, the trial judge erred in fact in concluding that:

' ... if the accident occurred as [the appellant] says it did in his evidence, then it is inconceivable he would not have made mention of that in the documentation immediately post-accident.'

when that conclusion could not reasonably be drawn from the evidence.

40 As to ground 1, counsel for the appellant submitted that no attempt was made to put to the appellant during his evidence that the likely cause of the accident was that he drove 'too close to the vehicle in front of him' or drove without sufficient concentration or overreacted to the illumination of the brake lights of the other vehicle. It was also submitted that there was no evidence to support any of those contentions.

41 As to grounds 2 and 3, counsel for the appellant submitted that there was nothing in the appellant's descriptions of the accident before he signed the written statement on 8 January 2013 that was significantly different from or a variation of the circumstances of the accident as described in the written statement. Counsel argued that the earlier accounts were 'entirely consistent with' the appellant's evidence at the trial, 'albeit that they [provided] significantly less detail than [his] oral evidence'.

42 As to ground 4, counsel for the appellant submitted that there was nothing in the appellant's descriptions of the accident before he signed the written statement on 8 January 2013 which supported the trial judge's conclusion that 'if the accident occurred as [the appellant] says it did in his evidence, then it is inconceivable he would not have made mention of that in the documentation immediately post-accident' [32]. Counsel also submitted that 'as a matter of logic, [his Honour's] conclusion [in that regard] is challenging to say the least'. Counsel contended that the fact that 'later statements may include a more comprehensive account of events is explicable on any number of grounds, including the emergence of disputation and the prospect of litigation'. It was submitted that his Honour should not have rejected, on the basis of alleged prior inconsistent statements, the appellant's otherwise 'satisfactory' evidence.

43 At the trial, the appellant carried the burden of persuading the trial judge on the balance of probabilities that, as a result of the negligence of the unidentified driver of a small car, the appellant was forced suddenly to take evasive action and, in the course of taking that action, he lost control of the prime mover and it rolled over.

44 It is insufficient for an appellant who challenges a trial judge's findings of fact merely to demonstrate that an alternative finding was available on the evidence. The appellant must demonstrate that the trial judge made an error of fact. In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359, Beaumont and Lee JJ said:

The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [(1979) [1979] HCA 9; 142 CLR 531] (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).) (369)

See also Williams v The Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255 [84] (Heydon JA, Spigelman CJ & Sheller JA agreeing).

45 The present appeal must be dismissed unless the appellant satisfies this court that the trial judge erred, as alleged in the grounds of appeal, in failing to find that the accident occurred as a result of the negligence of the unidentified driver of a small car.

46 Further, the appeal faces the additional hurdle that the trial judge had the advantage of seeing and hearing the appellant give his evidence. As French CJ, Bell, Keane, Nettle and Gordon JJ observed recently in Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679:

The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]; [2003] HCA 22; 77 ALJR 989 per Gleeson CJ, Gummow and Kirby JJ) of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings (Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 - 481; [1993] HCA 78; 67 ALJR 528 per Deane and Dawson JJ; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]; [2003] HCA 22; 77 ALJR 989 per Gleeson CJ, Gummow and Kirby JJ; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 at [76]; [2010] HCA 31; 84 ALJR 644 per Heydon, Crennan and Bell JJ). But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]; [2003] HCA 22; 77 ALJR 989 per Gleeson CJ, Gummow and Kirby JJ), or they are 'glaringly improbable' or 'contrary to compelling inferences' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]; [2003] HCA 22; 77 ALJR 989. See also Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 at [76]; [2010] HCA 31; 84 ALJR 644). In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them [43].

47 The contention in ground 1 that the trial judge erred in law in making findings as to the likely causes of the accident when the propositions underpinning the findings were not put to the appellant in evidence is without merit.

48 His Honour decided in effect that the appellant had not discharged the burden of persuasion. That is, his Honour was not satisfied on the balance of probabilities that, as a result of the negligence of the unidentified driver of a small car, the appellant was forced suddenly to take evasive action and, in the course of taking that action, he lost control of the prime mover and it rolled over.

49 It was open to the trial judge to reject the appellant's evidence as to the manner in which the accident occurred. The inferences drawn by his Honour were not only open but, on my assessment of the trial record, were correct. In particular, his Honour made a compelling finding that if the accident was caused in the circumstances that were asserted by the appellant in his evidence, it was inconceivable that the appellant would not have mentioned those causal circumstances in the versions of events he gave after the accident and before he signed the written statement on 8 January 2013.

50 His Honour was not bound to make any positive findings to the effect that the accident occurred in some other manner than that asserted by the appellant in his evidence. It was sufficient for his Honour to reject, as he did, the appellant's evidence as to the manner in which the accident occurred and to decide, as he did, that the appellant had not discharged the burden of persuasion.

51 In any event, the trial judge was not precluded from referring in his reasons to what he considered were the probable causes of the accident unless those probable causes had been put to the appellant during his evidence.

52 The rule in Browne v Dunn (1893) 6 R 67 comprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence. See Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 16, 18, 26 (Hunt J); Village Cay Marina Ltd v Acland [1998] BCC 417, 426 (Lord Hoffman, Lord Lloyd of Berwick, Lord Nolan, Lord Hope of Craighead & Sir Andrew Legatt agreeing); Williams v Dawson [2000] WASCA 205; (2000) 31 MVR 559 [32] (Parker J, Kennedy & Wheeler JJ agreeing); Merrey v The State of Western Australia [2010] WASCA 62 [9] - [11] (McLure P, Owen JA & Jenkins J agreeing); Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498 [42] - [48] (Allsop P, Giles JA & Tobias AJA).

53 The policy rationale that underpins the rule in Browne v Dunn is the securing of fairness in the conduct of adversarial proceedings. See R v Birks (1990) 19 NSWLR 677, 688 (Gleeson CJ, McInerney J agreeing); Adamson v Ede [2009] NSWCA 379 [56] - [62] (Campbell JA, Giles & Hodgson JJA agreeing); Chanaa v Zarour [2011] NSWCA 199 [13] (Campbell JA, Bathurst CJ & Tobias AJA agreeing). The first limb is concerned with achieving fairness to witnesses and a fair trial between the parties. The second limb is concerned with the weight or cogency of evidence. See Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846 - 848 (Newton J); Allied Pastoral Holdings (18). The rule facilitates a court's assessment of the reliability and accuracy of the witnesses. See Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 [21] (Ashley & Redlich JJA and Coghlan AJA).

54 The rule in Browne v Dunn is not absolute. It must be applied with flexibility. In R v Birks, Gleeson CJ emphasised:

It is plain that their Lordships [in Browne v Dunn], whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created (688).

55 The first limb does not apply where the witness is clearly on notice of the other party's or cross-examiner's intention to invite the court to disbelieve the witness and the witness is also clearly on notice as to the grounds upon which it will be contended that his or her evidence should be disbelieved. The second limb does not apply where the witness is clearly on notice as to the nature of the case upon which it is intended to rely in contradiction of the witness's evidence. See Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 [183] (Buss JA, Martin CJ & Mazza JA agreeing).

56 It will often be apparent from the nature of or the issues in a case, as defined by the originating process, other documents filed with the court or the submissions of counsel, that the general credibility of a witness, or the credibility of a witness on a particular matter, is in dispute. This will most often arise in relation to a witness who is a party, but it is not limited to that situation.

57 Ordinarily, it will not be necessary to put to a party to proceedings a matter which is clearly in issue in the case. See Stern v National Australia Bank Ltd [2000] FCA 294; (2000) 171 ALR 192 [42] (Hill, O'Connor & Moore JJ).

58 In the present case, the respondent denied, in effect, in par 3 of its defence that the unidentified driver of a small car had caused the appellant to lose control of the prime mover. The respondent then pleaded in par 3 that the appellant's negligence was 'the sole, or alternatively a substantial, cause of [the appellant's] loss of control of his vehicle'. The particulars of par 3 alleged that the appellant was negligent in that he:

(a) failed to observe the unidentified driver's vehicle in the southbound left lane of the Kwinana Freeway whether in time or at all;

(b) failed to keep a proper look out;

(c) drove too fast in all the circumstances;

(d) failed to brake whether in time or at all;

(e) was driving too close to the vehicle travelling in front of him;

(f) overreacted; and

(g) swerved off the road when it was manifestly unsafe to do so in the circumstances.

59 In my opinion, there is no doubt that the trial judge's observations as to probable causes of the accident related to a matter squarely in issue in the proceedings. The probable causes, referred to by his Honour, were in essence mentioned in the particulars of par 3 of the defence. The appellant did not suffer any unfairness either as a party or a witness at the trial.

60 Further, the other contention in ground 1 that there was no evidence to support his Honour's inferences as to the probable causes of the accident is without merit.

61 There was support for the inferences in the Workers' Compensation Form dated 26 July 2011 (exhibit 3), the appellant's Employer's Report of Injury dated 27 July 2011 (exhibit 4), the undated Crash Report Form (exhibit 6) and, to a lesser extent, in the notes made on 22 July 2011 by Dr Cubitt (exhibit 8), the St John Ambulance Patient Care Record dated 22 July 2011 (exhibit 9), the WorkCover WA Workers' Compensation First Medical Certificate dated 22 July 2011 (exhibit 10) and in the appellant's cross-examination as to his failure to report or mention, before he signed the written statement on 8 January 2013, that a vehicle had cut in front of his prime mover or the existence of the other truck (ts 36 - 40, 47 - 58).

(a) In exhibit 3 the appellant described the circumstances of the accident as follows:

Vehicle in front of me braked hard and suddenly causing me to do the same, to avoid hitting them, I had to swerve to the left, causing the truck to roll over.

(b) In exhibit 4 the appellant provided to the author of that part of the document the following description of the circumstances of the accident:

While driving south on Kwinana Fwy a car travelling in front of the truck braked suddenly + hard, I braked to avoid hitting the car. I swerved to the left of the road, the left hand wheel (front) grabbed in the sand and caused the truck to roll over.

(c) In exhibit 6 the appellant described the circumstances of the accident as follows:

While traveling [sic] south on Kwinana Fwy on Friday 22 July 2011, in the left lane sit on 90 - 95 km, just after 14.00 hrs a car passed me, and got in front of the truck after a couple minutes it brake; I brake I could see I was going to hit the car, so I try to go the left of it. The left front wheel went to the sand and pull the truck around and rolled over. It had been raining early, not at the time of the accident. The car drove off.

(d) In exhibit 8 the circumstances of the accident as described by the appellant to Dr Cubitt were recorded as follows:

Restrained truck driver on the freway [sic] when car in front slowed suddenly. Breaked [sic], speed approx 80 and truck rolled onto side.

(e) In exhibit 9 the circumstances of the accident as described by the appellant to the ambulance officer were recorded as follows:

Restrained driver of a truck, travelling at [approximately] 95 km/hr, which rolled onto driver's side & ? slid for several meters [sic] after emergency braking.

(f) In exhibit 10, signed by the appellant, the circumstances of the accident, based on the appellant's description, were as follows:

Truck roll over avoiding car that braked suddenly.

(g) During cross-examination it was put to the appellant that:

(i) he could not have avoided hitting the small car if the unidentified driver had cut in front of him and slammed on the brakes with a gap between the vehicles of only 8 - 10 m, while the appellant's prime mover was travelling at 90 - 95 km per hour, because during his reaction time he would have travelled between 25 and 53 m (ts 31 - 34);

(ii) in exhibit 6, which the appellant completed about three weeks after the accident, he did not mention a vehicle which had cut in front of his prime mover, in the way he had described in his evidence, before the unidentified driver of the vehicle had slammed on its brakes (ts 35 - 40);

(iii) he had been travelling behind the small car for a couple of minutes before the unidentified driver allegedly braked (ts 37);

(iv) in exhibit 3, which the appellant (with the assistance of Vanessa Townsend) completed and signed about four days after the accident, there was no mention of a vehicle which had cut in front of his prime mover (ts 47);

(v) he made no mention to hospital staff or the ambulance officer of a vehicle which had cut in front of his prime mover (ts 52 - 55); and

(vi) if the accident had happened in the manner he alleged in his evidence, he would have been very annoyed and consequently he would have mentioned immediately after the accident that a vehicle had cut in front of his prime mover (ts 55).

(h) The appellant's evidence as to his ability to have avoided hitting the small car was implausible having regard to:

(i) the weight of his prime mover (9 - 10 tonnes) (ts 30);

(ii) the speed at which he was travelling (90 - 95 km per hour) (ts 7);

(iii) the alleged distance of only 8 - 10 m between the vehicles (ts 9);

(iv) the small car having allegedly cut in front of his prime mover (ts 9):

(v) the unidentified driver of the car having 'stopped in front of [him]' (ts 9); and

(vi) the reaction time for him to apply the prime mover's brakes (ts 31).

(i) The appellant was unable to offer a plausible explanation as to why he did not mention, in the versions of events he gave after the accident and before he signed the written statement on 8 January 2013, that the small car had cut in front of him.

(j) The appellant said in cross-examination that he agreed with his written statement that the small car had been travelling next to him for 20 seconds (ts 43) whereas in examination-in-chief he said that the small car had been travelling next to him for one and a half to two minutes (ts 9).

63 The trial judge's observation that the appellant had given his evidence in a 'satisfactory manner' [31] does not convey that, in his Honour's view, the substance of his evidence was satisfactory. His Honour's observation was made in the context of his description of the appellant as 'a man of few words' [31]. His Honour's observation does not indicate an acceptance that the version of events given by the appellant in evidence was accurate and reliable.

64 It is plain, in my opinion, that his Honour did not accept the appellant's evidence as to how the accident occurred. That conclusion is readily apparent on a fair reading of his Honour's reasons at [32] in the context of his Honour's reasons as a whole.

65 In my opinion, there was a proper basis in the evidence (notably, in the contents of the documents and the passages from the appellant's cross-examination to which I have referred) for the trial judge's inferences as to the probable causes of the accident. His Honour did not make any material error of law or fact in drawing the inferences.

67 It is convenient to consider grounds 2 and 3 together.

68 The contention in ground 2 that the trial judge erred in law in finding that there were 'significant differences' or 'variation' between the appellant's descriptions of the accident made prior to January 2013 and the descriptions of the accident made in or after 2013, when there was no evidence to support that finding, is without merit, for the reasons already given. Also, the appellant's alternative contention in ground 3 that his Honour erred in fact in finding that there were 'significant differences' or 'variation' between the appellant's descriptions of the accident made prior to January 2013 and the descriptions of the accident made in or after 2013, when that finding was against the weight of the evidence, is without merit, for the reasons already given.

69 Counsel for the appellant's argument at the hearing of the appeal included the contention that his Honour had misunderstood the appellant's description of the accident in the undated Crash Report Form (exhibit 6).

70 In the Crash Report Form the appellant said, relevantly, that:

[A] car passed me, and got in front of the truck after a couple minutes it brake; I brake I could see I was going to hit the car, so I try to go the left of it.

71 It is apparent from [17] of the trial judge's reasons that he understood the appellant to be asserting that:

(a) a car passed the appellant's prime mover and got in front of the prime mover; and

(b) after a couple of minutes, the unidentified driver of the car braked, the appellant applied the prime mover's brakes, and the appellant could see that the prime mover was going to hit the car so he tried to get to the left of it.

72 Counsel for the appellant contended that the appellant's description of the accident in the Crash Report Form should be understood as follows:

(a) a car passed the appellant's prime mover and got in front of the prime mover after a couple of minutes; and

(b) the unidentified driver of the car braked, the appellant applied the prime mover's brakes, and the appellant could see that the prime mover was going to hit the car so he tried to get to the left of it (appeal ts 6 - 12).

73 In my opinion, his Honour's understanding on this issue was correct. It accords with the ordinary and natural reading of the text. It makes no sense to read the passage as if it asserted that a car passed the appellant's prime mover and then after a couple of minutes got in front of the prime mover. If the car had passed the prime mover it would at that stage have got in front of the prime mover. Counsel for the appellant's contention on this issue should be rejected.

74 In any event, it is remarkable that the appellant did not refer in the text or the sketch in the Crash Report Form to the car having cut him off. It is remarkable because if there had been a car which had cut him off that would have been a fundamental point of abiding concern for the appellant when he recalled or gave an account of the circumstances of the accident.

75 As I have mentioned, the sketch indicates that immediately before the accident both vehicles were travelling in the outer lane with one vehicle in front of the other, rather than one vehicle moving from the inner to the outer lane and cutting in front of the other.

76 I am satisfied that there was ample evidence to support the trial judge's finding that there were 'significant difference[s]' or 'variation' between the appellant's descriptions of the accident made prior to January 2013 and the descriptions of the accident made in or after 2013. The finding was not against the weight of the evidence. I refer in this connection to my summary and analysis of the evidence in the context of ground 1 and, also, to my evaluation of the Crash Report Form in the context of grounds 2 and 3.

77 His Honour was entitled to find that if the accident occurred as the appellant said it did in his evidence, it was inconceivable that the appellant would not have made mention of that manner of occurrence in any of the documents created or in any of the accounts he gave shortly after the accident. The appellant's failure to mention that manner of occurrence is not, in the circumstances, reasonably explicable on any of the bases contended for by counsel for the appellant.

78 The evidence at the trial did not support a finding or an inference that the accident was caused by the negligence of the unidentified driver of another vehicle.

80 The contention in ground 4, namely the trial judge made an error of fact in that his Honour's conclusion that if the accident occurred as the appellant said it did in his evidence 'then it is inconceivable he would not have made mention of that in the documentation immediately

post-accident' [32] could not reasonably be drawn from the evidence, is without merit.

81 I am of that opinion generally for the reasons I have given in the course of considering grounds 1, 2 and 3 and in deciding that those grounds have not been made out.

(a) His Honour was correct in concluding that if the accident had happened in the manner alleged by the appellant in his evidence 'there would very likely be significant emphasis on the vehicle's manoeuvre' [29], but there was no such emphasis before January 2013.

(b) The appellant was unable to explain in his evidence at the trial why there was no reference in any of the documentation completed before January 2013 to his claim that the other vehicle had cut him off.

(c) His Honour expressed (and was justified in expressing) reservations as to the accuracy and reliability of the appellant's version of events at the trial.