Bezer v Bassan

Judgment

1. MACFARLAN JA: At about 10.15am on 6 September 2012 the appellant and his step-brother, the respondent, were the occupants of a utility motor vehicle which left Mendooran Road, about 20 kilometres south-west of Mendooran, New South Wales, and crashed. The vehicle travelled some 50 metres off the road before tumbling end on end, or rolling a number of times, and coming to rest. The absence of any indications of braking on the road and on the ground over which it travelled suggested that the driver fell asleep and that the accident was therefore caused by his fatigue. The appellant was severely injured and had to be extracted from the vehicle by emergency workers whilst the respondent was only slightly injured and was able to climb out.
2. The appellant claimed damages from the respondent in proceedings that he commenced in the District Court. The sole issue on liability at the hearing before Gibb DCJ was whether it was the appellant or the respondent who was driving the vehicle at the time of the accident. Each asserted that the other was the driver.
3. After a hearing occupying about 25 complete hearing days, her Honour found by a 100 page judgment of 31 May 2018 that the appellant was the driver and that the respondent was therefore entitled to judgment in his favour.
4. On appeal to this Court, the sole ultimate issue between the parties was whether the appellant had proved below, on the balance of probabilities, that the respondent was driving the vehicle when it crashed. The parties accepted that if this Court determined that issue in favour of the appellant that it would not be able to assess the appellant's damages. This was because that determination would reflect favourably on the appellant's credit whereas her Honour's contingent assessment of damages was founded on an adverse view of his credit. The parties therefore accepted that a new trial would have to occur in this event.

THE PARTIES' VERSIONS OF WHAT OCCURRED

1. As the appellant and respondent had the same father, but not the same mother, they were step-brothers. The appellant is a large man who was aged 29 and weighed in the range of 110 to 140 kilograms at the time of the accident. The respondent was aged 19 and weighed less than 50 kilograms. Their father died on 2 September 2012 in a motor vehicle accident. As a result, the appellant and respondent came together at Mendooran on 4 September 2012.
2. On the appellant's evidence, they set out from Mendooran on the morning of 6 September to drive to see a lawyer in Dubbo about their father's funeral. The appellant said that initially he was driving but that he soon asked the respondent to drive because he felt tired. The appellant said that they changed positions, put their seatbelts on and recommenced their journey, with the appellant having his seat reclined to enable him to sleep. The next he knew was that the vehicle left the road and crashed.
3. On the other hand, the respondent gave evidence that when they left Mendooran he was, and subsequently remained, in the passenger seat, which was reclined to enable him to fall asleep. When he awoke, the vehicle had crashed and was on its side. He said that the appellant's foot was "slightly across" his face. He moved it off, unbuckled his seatbelt and climbed out. He had "bits of conversation" with the appellant who was in great pain and could not feel his legs. He said that the appellant said to him, amongst other things: "Mate, can you - I don't have a licence, can you say you were driving for insurance reasons." The respondent agreed to do this.
4. As a result, the respondent told a lay person who arrived at the scene, an ambulance officer, police officers, nurses and a doctor that he had been driving the vehicle when it crashed. He was taken by ambulance to Dubbo Base Hospital and discharged at about 4.30pm later the same day.
5. He gave evidence that at the hospital a nurse, who cut off his T-shirt, referred to bruising on his left shoulder and across his chest to his right hip as indicating that a seatbelt he was wearing had saved his life. The respondent said that at this time he told his sister that he had not in fact been driving the vehicle when it crashed, to which she replied that he should tell his mother and aunt that this was so. As a result he told his mother this and she took him to the police station where he informed police officers that he had not been driving the vehicle when it crashed. He said that he showed them his seatbelt bruising.

THE ISSUE AT FIRST INSTANCE AND ON APPEAL

1. As is apparent from the above, there was a sharp conflict between the appellant's and respondent's evidence. The primary judge's resolution of the question of who was the driver was however assisted by a substantial body of other evidence that was adduced at the hearing, in particular, objective and expert evidence. That evidence focused mainly upon the nature of the injuries to the appellant and the respondent and whether the injuries indicated that the appellant or the respondent was wearing the front passenger seatbelt.

THE OBJECTIVE AND EXPERT EVIDENCE

1. On appeal the respondent's summary of the effect of the objective and expert evidence was essentially as follows: 1. The front passenger seatbelt was worn by someone (that is, either the appellant or the respondent) at the time of the accident. The driver's seatbelt was not worn at that time. 2. After the vehicle left, and travelled beside, the road, it dropped its nose into a gully "causing a significant frontal impact, before rolling end over end until it came to rest on its passenger side, towards the roof". The buckled front passenger seatbelt would, as a result of the accident, have caused bruising to the person in that seat, notwithstanding that the seat was reclined and that the sash part of the belt may not have been in contact with the passenger prior to the accident. The respondent's family, ambulance officers, a nurse and a police officer observed bruising on the respondent's body that could only have been caused by contact with the front passenger seatbelt. 1. A mark or crease evident on the front passenger seatbelt after the accident enabled the degree of extension of the seatbelt at the time of the accident to be determined. That extension was insufficient to enable the seatbelt to have spanned the appellant's considerable girth, whereas it was sufficient to have gone around the respondent's much smaller body. 2. The appellant's body was not bruised in a way that indicated that he had been wearing a seatbelt. Moreover, the extensive injuries that the appellant sustained in the accident indicated that he was an unrestrained occupant of the vehicle, whereas the respondent's limited injuries indicated that his movement in the crash was restrained by a seatbelt. 3. After the accident, the appellant was found in a position that was not inconsistent with him having been the driver.
2. If these propositions are correct, they are, at the very least, of considerable significance in determining whether the appellant established on the balance of probabilities that the respondent was the driver of the vehicle. As a result, it is desirable that I address them first.

(1) Were the front seatbelts worn at the time of the accident?

1. The appellant called expert crash investigation evidence from Dr Thomas Gibson, whilst the respondent called such evidence from Mr William Keramidas. These experts prepared individual reports and then a joint report after a conference between them. They also gave oral evidence individually and together.
2. In their joint report, the experts relied upon police photographs and other photographs provided to Mr Gibson showing distress of the front passenger seatbelt at the point where the buckle must have been positioned at the time of the accident to conclude that the seatbelt was worn by someone at the time of the accident. The primary judge noted and acted on this agreement. On appeal, the appellant did not challenge her decision to do so.
3. Mr Keramidas opined that the driver's seatbelt was not worn at the time of the accident. On the other hand, Dr Gibson said he had insufficient information to express an opinion one way or the other. The primary judge accepted Mr Keramidas' views. There is no challenge to that finding on appeal.

(2) What was the vehicle's trajectory after it left the road?

1. Senior Constable Justin Powell of the Forensic Services Group - Dubbo Crime Scene Section gave evidence of his detailed onsite investigation of the circumstances of the accident. Constable Powell concluded that the trajectory of the vehicle after it left the road was substantially as indicated in [11(2)] above. Without being aware of Constable Powell's view, Mr Keramidas reached the same conclusion.
2. Dr Gibson expressed a different view in his report but, when giving joint oral evidence, accepted that he did not have enough information to enable him to form a view. The primary judge accepted the views of Constable Powell and Mr Keramidas and the appellant does not challenge her Honour's finding on appeal.

(3)(a) Would the passenger's seatbelt sash have contacted the passenger in the course of the accident and left bruising?

1. Mr Keramidas gave evidence that if the vehicle had pitched into the side of the gully as he hypothesised (see [11(2)] above), the passenger would have been thrown up and forward, from his reclined position, contacting the seatbelt sash which, as a result of the impact, would have been "like a steel bar … it's retracted and fixed, locked". This would have resulted in "some form of seatbelt marking across the chest".
2. Dr Gibson opined that if the vehicle's trajectory had been as described by Mr Keramidas (that is, involving a substantial impact with the side of the gully), the passenger "is going to [have] come up and hit what is a fixed object, being the sash part of a seatbelt, locked and retracted" and that this would have caused bruising on the "left shoulder, right and left hip".
3. Consistent with that evidence, the primary judge observed that "[t]here is general agreement among the experts that, in a crash of this type, the seatbelt would leave marks on the body." The primary judge found that "[i]f the seatbelt was as the plaintiff describes, it necessarily would have inflicted significant marks (and bruising) upon the plaintiff's torso in the crash". The appellant challenged this finding on appeal but the evidence to which I have referred above supported the finding.

(3)(b) Did the respondent's injuries indicate that he was wearing the front passenger's seatbelt?

1. The respondent gave evidence that he had bruising on his left shoulder, across his chest and on his right hip and that he had shown it to two police officers on 7 September 2012.
2. The respondent's sister, Ms Mindy Bell, gave evidence that at the hospital, in the presence of her mother and aunt, a nurse pulled a sheet down from over the respondent "to show us seatbelt markings" and that the nurse said "this is what saved your life, Troy". Ms Bell said that the bruising was on the left shoulder, then apparently some on the chest and more on the right hip. The respondent's mother, Ms Diane Bassan, gave evidence to similar effect.
3. An ambulance officer, Mr Michael Edwards, prepared a "Case Description" to form part of NSW Ambulance records. It referred to the respondent as the "DRIVER" but went on to say "SEATBELT BRUISING PRESENT CONSISTENT WITH PASSENGER", indicating a suspicion or belief that the respondent was not, as he had apparently said, the driver of the vehicle. In oral evidence, Mr Edwards said that he would have included the reference to seatbelt bruising "on the basis that the bruising would have been from [the] left side to the right side of the body".
4. Mr Edwards' supervisor, Mr Ian Todhunter, made a police statement about a year after the accident stating that after the respondent was conveyed to Dubbo Base Hospital, Mr Edwards asked Mr Todhunter to look at the respondent as he was lying on his back in the hospital bed. Mr Todhunter said in the statement: "I observed the patient to have what appeared to be a seatbelt injury/bruising across his abdomen and across his chest. It just looked as though a seatbelt had been there … I told Michael that I believed the patient would have been in the passenger seat because the seat belt injury [was] across the chest from the left shoulder to the right hip."
5. Dubbo Base Hospital records include the following as "Emergency Documentation" in relation to the admission of the respondent on 6 September 2012: "Patient states driver of vehicle with brother as passenger. Bruising left chest wall, consistent with being passenger."
6. Ms Barbara Bignell, a triage nurse at the Hospital, stated in evidence that these comments were hers and that she based them on her own observations. In her police statement, Ms Bignell stated that she included the words "consistent with being passenger" because the respondent had "bruising and abrasions to the left chest wall which from my experience were from a seatbelt".
7. A police "COPS" record, apparently created on 7 September 2012, states as follows: "On Friday the 7th of September 2012 Detectives from Dubbo Spoke with the accused, he supplied a version stating he was the passenger of the vehicle and was not driving at the time of the collision. It was observed the accused had bruising across his chest consistent with that of a seatbelt marking. A formal statement was not obtained at this time."
8. An updated record apparently created later on 7 September 2012 is in the following terms: "On Friday the 7/9/12, police spoke with Troy BASSAN. Troy provided a version of the collision to police and clarified that he was the passenger of the vehicle and not the driver. A marking on his chest consistent with seat belt bruising confirmed this. A formal statement will be obtained at a later date."
9. The records were created by Detective Senior Constable Anthony Armour. When he gave evidence in July 2017 his recollection of what had occurred was limited. In particular, he could not recall whether he had spoken to the respondent on 7 September 2012 on the telephone or in person. He said that by not obtaining a formal statement from the respondent he did not follow his normal practice but, contrary to the appellant's submissions, this did not shed any light on whether he spoke to the respondent in person on 7 September 2012. That he did was however indicated at least by his use of the word "observed" in the records that he created on that day.
10. The appellant submitted that in finding, in reliance on this evidence, that the respondent had bruising indicating he had been wearing the front passenger seatbelt at the time of the accident, the primary judge failed to have regard to notes made by Dr Jennifer Mackay who attended to the respondent at Dubbo Base Hospital on 6 September 2012. Dr Mackay's notes record that the respondent had "bruising to lower abdo and pelvis from seat belt". Whilst that record provides some evidence that the respondent was wearing a seatbelt, the appellant submitted that it was significant that it did not record any bruising on the respondent's shoulder or chest from the sash section of the seatbelt. I do not however consider this omission from the record to be of any particular significance. Although Dr Mackay could not recall the examination in question, she said in evidence that her role in the examination was a limited one to keep the cervical spine straight and that the notes described only "in a shorthand way the areas covered by the examination and … the results thereof".
11. The appellant made a similar submission in relation to notes made at the Hospital by Dr Natalie Meredith. She recorded "Seatbelt bruising to right ASIS and left ASIS", the reference to "ASIS" being to the pelvic area. Again, Dr Meredith had a limited role. She acted as the junior doctor in attending to the respondent and was responsible for the "bloods and the blood alcohol of the patient". Neither her evidence nor that of Dr Mackay constituted a contradiction of the evidence of the other skilled professionals who observed bruising likely to have been caused by the sash of a seatbelt. The evidence of Dr Meredith and Dr Mackay in fact assists the respondent's case to the extent that they both drew the conclusion that the respondent was wearing a seatbelt. The fact that they omitted to observe or record further bruising that was observed and recorded by others is not of great significance.
12. In these circumstances, the primary judge accepted the respondent's submission that: "The seatbelt markings that one would expect to see on a passenger seat occupant referred to in the evidence of Mr Keramidas and Dr Raftos were the very markings which were observed on the defendant."
13. The accident investigation experts agreed that if in fact the respondent had bruising as a result of the accident from his left shoulder across to his right hip and then across to his left hip, the bruising must have come from a seatbelt on the passenger side of the vehicle.
14. As a result, the primary judge accepted the respondent's submission that: "In the event the Court accepts that the defendant suffered seat belt bruising of the type described by numerous witnesses, the experts are in agreement that those markings could only have been caused by a three point restraint system on the passenger side."
15. In these circumstances, the objective and expert evidence strongly favoured an affirmative answer to the question postulated, that is, whether the respondent's injuries indicated that he was wearing the front passenger seatbelt. The appellant submitted that the fact that the respondent was noted in the ambulance records as having a "bleeding lip and blood coming from his nose" suggested the contrary because these injuries were consistent with injuries that the driver might have suffered upon release of the steering wheel airbag. The existence of those injuries however was neutral as they may have been suffered by other means in the course of the accident.

(4) Was the front passenger seatbelt extended sufficiently to enable it to span the appellant's girth?

1. Based on photographs of the vehicle, Mr Keramidas concluded from the position of a crease mark on the front passenger seatbelt that at the time of the accident it was not extended sufficiently to enable the lap section of the seatbelt to go around the appellant's girth.
2. In his report of 7 January 2015 Dr Gibson included photographs of the front passenger seatbelt, which he said showed "signs of bunching at the buckle and a stretch mark in the webbing". He said that this "may indicate that the passenger side seat belt was used in the crash". In oral evidence that Dr Gibson later gave, he accepted that if the crease (that is, the "stretch mark") on the seatbelt indicated the point to which it extended at the time of the crash (as Mr Keramidas said it did), he agreed with Mr Keramidas that the lap section of the seatbelt would not have been sufficiently long to encompass the appellant's girth.
3. The experts' joint report includes the following: "Dr Gibson agrees that the front passenger seatbelt was worn in the crash. The belt exhibits signs of bunching in the buckle and stretching, where the belt buckle was likely to have been positioned when loaded in the crash. This can be seen in Figure 5 of the report of Dr Gibson dated 19 January 2015".
4. The primary judge rejected as follows an attempt by Dr Gibson to "retreat" from these opinions of his about the "crease": "The expert evidence is overwhelmingly consistent on the point that the passenger seatbelt was in use; it would not have fitted the plaintiff; but it would have fitted the defendant, who was wearing a seatbelt. I place no weight on Dr Gibson's later conjecture/speculation that the crease may have been caused at another time. There is no evidence supporting that possibility/conjecture."
5. Although the appellant challenged the primary judge's conclusion on this issue, the conclusion was strongly supported by the evidence. As her Honour pointed out, Dr Gibson's later-expressed qualifications to his views carried little weight.

(5) Did the appellant's injuries indicate that he was wearing the front passenger's seatbelt?

1. Dr John Cummine, an orthopaedic surgeon, gave expert evidence for the respondent concerning the appellant's injuries. He opined that the lacerations, abrasions, grazes, bruises and contusions documented in the Dubbo Hospital notes rendered it "in the spectrum more likely the [appellant] was unrestrained than restrained". He did not consider that the appellant's spinal injuries shed any light on the question of whether the appellant was restrained in the vehicle or not.
2. Associate Professor John Raftos, a specialist in emergency medicine who also gave expert evidence for the respondent, opined: "[The appellant] suffered injuries to most of his body regions including his feet (talus and navicular fractures), thoracolumbar spine, chest (rib fracture, lung contusions, pneumothorax), cervical spine, and head. These widespread injuries suggest that he was free to move within the vehicle at the time of impact, that is that he was not restrained."
3. In particular, Professor Raftos opined that the marks on the appellant's abdomen were not typical of the marks that would be made in an accident by the lap portion of a seatbelt. He also said that the appellant's "bilateral lung injuries are consistent with a front-on impact with an object, such as the steering wheel airbag, that caused no bruising to the anterior chest wall". He said that bruising to the appellant's chest caused by striking the steering wheel would not have been expected as the steering wheel airbag "was deployed at the time of impact, preventing the driver from impacting the steering wheel, as is its purpose".
4. Photographs showed bruising of the appellant only to the left shoulder and left hip, with none on his chest and none extending across the abdomen. Mr Keradmidas and Dr Gibson agreed that the left shoulder bruising was probably not seatbelt related. The primary judge accepted this evidence.

Dr Harrison's evidence

1. Dr Kenneth Harrison, a trauma consultant called to give evidence by the appellant, looked for but did not find bruising of the appellant's chest and shoulders that would have indicated that his body had contacted the sash portion of a seatbelt during the accident. Dr Harrison said however that he would not have expected to see such bruising if the appellant had been sitting in the front passenger seat in a reclined position (because the passenger would not have contacted the sash portion of the belt). That opinion did not however have any weight as Dr Harrison's qualifications are medical. As noted above at [18]-[19], those with relevant expertise, in the dynamics of motor vehicle crashes, considered that the reclined passenger would in fact have contacted the sash portion of his seatbelt.
2. Dr Harrison also observed marks on the appellant's abdomen that he said were "completely consistent with wearing the lap sash of a seat belt" but this did not mean that they indicated that he was wearing a seatbelt. In oral evidence Dr Harrison accepted that such chest injuries as the appellant had were not caused by the sash section of a seatbelt.
3. Dr Harrison theorised that the appellant's spinal fracture was of a type consistent with the appellant having been restrained by a lap sash belt only, with his spinal compression having been caused by his upper body bending forward in the accident because he was not restrained by a sash belt.
4. The primary judge dealt with this theory at considerable length and identified at least three flaws in it. First, the injury could only have occurred in this manner if the appellant (assuming, contrary to other evidence, that he was in the front passenger seat) had not contacted the sash part of the front passenger seatbelt. For the reasons given above at [18]-[20] this could not have occurred. If the vehicle hit the side of the gully resulting in a significant frontal impact, the passenger's upper body would have moved up from the reclined position to hit the taut seatbelt sash. The passenger could not have missed the sash, particularly not the appellant who was a very large man. As the primary judge concluded: "there is no evidence, nor opinion from the relevant engineers, as to how, if at all, the plaintiff could miss the sash portion of the seatbelt when the lap portion of the seatbelt was tensioned to the point that it acted as a fulcrum to prevent the jack-knifing."
5. Secondly, it was open to the primary judge, as she did, to accept Dr Raftos' opinion that if the passenger had jack-knifed as Dr Harrison theorised "much more marked bruising on the hips and on the abdomen" would have been evident than was visible on the appellant.
6. Thirdly, it was open to the primary judge, as she did, to accept Dr Cummine's evidence that the type of fracture suffered by the appellant was not necessarily related to the use of a seatbelt but could have occurred in other ways.

(6) Where in the vehicle was the appellant found after the accident?

1. The primary judge accepted the evidence of Mr Colin Johnson, an ambulance paramedic who entered the crashed vehicle to attempt to free the appellant. Mr Johnson said that the appellant was "lying against the back seat of the vehicle". This evidence was reflected in the handwritten Ambulance Report which stated that the appellant was "on [the] back seat? Restrained". The word "restrained" was not a reference to a seatbelt restraint but to the fact that the appellant was otherwise constrained from moving. Mr Johnson's evidence was consistent with that of Mr Brett Hawkless, a person who came upon the accident site, that the appellant "was in the back seat with his head pressed against the roof and his chin was nearly touching his chest or may have been touching his chest and his leg was stuck under one of the front chairs" and with that of Mr Richard Keegan, another bystander, who said that the appellant was "in the centre of the vehicle behind the driver's seat".
2. These descriptions were imprecise and to some extent different, which was understandable bearing in mind the traumatic circumstances in which the witnesses' observations were made. It is significant however, as her Honour found, that they could not be reconciled with the appellant's evidence that after the accident he was in the passenger seat, unable to move despite having released his seatbelt.
3. The appellant contended that other evidence should have led her Honour to a different conclusion. First, he relied upon the evidence of Mr Michael Tiyce, another bystander, who said that the appellant's "legs were on the passenger side seat and his feet were up underneath the dashboard". His description did not however support that of the appellant because if the appellant's legs were on the front passenger seat, his torso must have been towards the back of the vehicle.
4. Secondly, the appellant relied on the evidence of Senior Constable Acheson. Whilst Constable Acheson said that the appellant was "in [the front] passenger seat of the car", he said that that seat was "pushed backwards" so that it was "sort of in the rear of the vehicle, in the back seat".
5. Thirdly, Constable Cole Shanahan recalled the appellant being "seated on the passenger side, and the passenger seat was moved backwards and reclined". Later in his evidence he said that the appellant "was on the passenger seat, which was reclined" but he could not recall where on the seat he was other than to say that "[h]is body was covering the passenger seat" including "the reclined back section of the seat". Neither this evidence nor the other evidence upon which the appellant relied constituted evidence that the appellant's backside was on the front passenger's seat in the position where it would have been expected to be if his evidence was correct, that after the accident he was in the passenger's seat (albeit with the back reclined), undid the seatbelt but was unable to move. Accordingly, he has not demonstrated that the primary judge's finding was inconsistent with any of the evidence before her or against the weight of the whole of the evidence on this topic. The evidence in fact supported her Honour's finding.

The appellant's objection to tender of certain material in the Joint Expert Report

1. Ground 8 in the Notice of Appeal is in the following terms: "The Primary Judge erred in law by over-ruling an objection by the appellant to the tender by the respondent of material in joint experts' reports going beyond matters that were the subject of agreement by the experts, contrary to UCPR 31.26(4) and thereafter erroneously had regard to such material when making her central findings of fact such that the process of fact finding engaged in by her miscarried."
2. As neither the appellant's written nor oral submissions addressed this ground, leave was given to lodge a supplementary submission after the hearing in this Court. That submission contended that the primary judge erred in admitting those parts of the Joint Expert Report of Mr Keramidas and Dr Gibson which did not record agreements between them. The only such material identified in the submission as being, of itself, of any materiality was Mr Keramidas' opinion as to whether the driver's seatbelt was being worn at the time of the accident. In a passage in the Joint Expert Report that was not tendered, Dr Gibson said that there was insufficient evidence to reach that conclusion.
3. The appellant relied upon the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 31.26 which is in the following terms: 31.26 Joint report arising from conference between expert witnesses (1) This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c). (2) The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement. (3) The joint report may be tendered at the trial as evidence of any matters agreed. (4) In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court. (5) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.
4. The opinion of Mr Keramidas which was the focus of the appellant's submission was, by the time of the tender of the Joint Report, already in evidence as part of Mr Keramidas' supplementary report of 30 March 2017. As the admission of that evidence of the opinion was not challenged on appeal, it is sufficient to regard the matters leading to that admission as equally justifying the admission of the further expression of it. Rule 31.26(4) was thus applicable to render the evidence admissible.
5. The appellant's supplementary submission then contended that "almost all the rest of the joint report concerned answers to questions that were not the subject of agreement" and ought not to have been admitted. He conceded however that none of these answers were of themselves critical to the outcome of the case.
6. The opinions of Mr Keramidas expressed in the Joint Report largely, if not wholly, simply reflected opinions that he had expressed in his earlier individual reports, both of which had been admitted into evidence. In the absence of any specification by the appellant of any opinion that went beyond what Mr Keramidias had earlier said, the appellant's submission should be rejected.

Summary of the effect of the objective and expert evidence

1. For the reasons above, the objective and expert evidence before the primary judge supported the following preliminary conclusions: 1. Either the appellant or the respondent was wearing the front passenger seatbelt. No-one was wearing the driver's seatbelt. 2. The vehicle's trajectory after it left the road resulted in it suffering a substantial impact with the side of the nearby gully, resulting in the passenger making contact with and being bruised by his seatbelt. 3. The respondent was bruised in the accident in a manner consistent with him having been wearing the front passenger seatbelt. 4. At the time of the accident, the front passenger seatbelt was not extended sufficiently to encompass the appellant's girth, whereas it could have encompassed the respondent's body. 5. The appellant's injuries were consistent with him being unrestrained by a seatbelt, whereas the respondent's were not. 6. The appellant was found in a position in the vehicle not inconsistent with him being the driver of the vehicle.

THE RESPONDENT'S CREDIBILITY

1. Although the primary judge found the respondent to be "a forthright, honest, frank and direct witness", her Honour recognised that, in the hours following the accident, the respondent had, on his case that he was not the driver, falsely told ambulance, medical personnel and police that he was the driver. Although he gave an explanation for the lies (that the appellant requested him to tell them), they necessitated extreme caution being exercised before acceptance of his evidence. As well as other matters going to his credit, there was also the fact that he was not an independent witness but one very much interested in the outcome of the proceedings. In these circumstances, the primary judge understandably emphasised what she regarded as corroboration of his evidence by "a number of coherent and credible witnesses" and "reliable circumstantial evidence". Contrary to the appellant's submission, her Honour was thus not "almost exclusively concerned with the issue of credit in reaching her findings as to liability".
2. Both at first instance and on appeal, the appellant relied upon the evidence of Mr Darrol O'Callaghan and Mr Aaron Thorne to contend that the respondent admitted to them, even after he told the police otherwise on 7 September 2012, that he had been the driver of the vehicle when it crashed. The appellant submitted that this indicated that the respondent's statements immediately after the accident that he was the driver were truthful and that his subsequent statements asserting otherwise were lies. The primary judge however rejected the evidence of both Mr O'Callaghan and Mr Thorne.
3. The appellant submitted that the primary judge did not explain how she reached the conclusion that Mr O'Callaghan's evidence "lacked any credibility". That is not however the case. In particular, her Honour made it clear that she rejected his evidence because she regarded it as inconsistent with evidence of the respondent, his mother, his sister and Detective Armour.
4. The appellant likewise challenged the primary judge's rejection of Mr Thorne's evidence, submitting that "her Honour overlooked the plausibility of Mr Thorne's evidence especially in the context of the other admissions evidence, with which his evidence was consistent". Leaving aside that of Mr O'Callaghan, the "other admissions evidence" however supported the conclusion that the respondent initially told emergency workers and others that he had been the driver but when told by his mother that he should tell the truth about what happened, he attended the police station with her on 7 September 2012 and told them that he had been a passenger, rather than the driver.
5. The remarkable aspect of Mr Thorne's evidence (and that of Mr O'Callaghan) was that having said initially that he was the driver and then having recanted at the police station, the respondent was alleged by them, for no apparent reason, to have departed from this version in casual, subsequent conversations with Mr O'Callaghan and Mr Thorne. The appellant's submission concerning Mr Thorne's evidence was tantamount to a submission that this Court should, impermissibly, simply re-decide whether Mr Thorne's evidence should, impermissibly, be accepted and should disregard the considerable advantages that the primary judge had in seeing and hearing Mr Thorne, and other witnesses relevant to the matters about which he spoke, give their evidence.
6. In these circumstances, the challenges to Mr O'Callaghan's and Mr Thorne's evidence should be rejected.
7. In any event, even if the primary judge were found to have erred in rejecting the evidence of Mr O'Callaghan and Mr Thorne, their evidence would have had little, if any, impact on the outcome of the appeal because the respondent's evidence, which their evidence was led to contradict, was itself of limited significance for the reasons that I have given (see [62] above).

THE APPELLANT'S CREDIBILITY

1. The primary judge said that the appellant's evidence was "riddled with false statements", and that he admitted to "numerous untruths in numerous documents in the course of cross-examination" and "conceded in varying ways numerous lies in unrelated matters, such as his licence applications".
2. As is to some extent explicit, and is otherwise implicit, in her Honour's judgment, the availability of objective and expert evidence in the present case rendered the evidence of the appellant and respondent, who were witnesses very much interested in the outcome of the proceedings, as of limited significance. For reasons that are apparent from my observations in relation to the questions posed at [13]-[55] above, the objective and expert evidence contradicted the appellant's case in a significant fashion and thus indicated that the primary judge did not err in finding that the appellant had failed to discharge his onus of proving on the balance of probabilities that the respondent was the driver of the vehicle.
3. In these circumstances, it is of little, if any, importance to determine whether the primary judge erred in her reasoning that led to her rejection of the appellant's evidence. Nevertheless, I deal briefly and as follows with the appellant's principal contentions in that regard.
4. On appeal, the appellant submitted that her Honour's adverse comments concerning the appellant's evidence were unfounded. He gave three illustrations of errors made by the primary judge in this regard.
5. First, the appellant submitted that her Honour erred in stating that the appellant conceded that he lied in driving licence applications. In Queensland and New South Wales licence applications, the appellant answered "no" to a question asking him whether he had "any … medical condition that is likely to adversely affect [his] ability to drive safely". Although he asserted that he had had a conversation with a person at the Queensland registry about the question, his evidence made it clear that he knew what the terms of the question were and answered "no" notwithstanding that he did not in fact consider himself fit to drive a motor vehicle. In these circumstances, it was open to the primary judge to find that he lied in making the applications.
6. Secondly, the appellant submitted that the primary judge erred in concluding that the appellant gave contradictory evidence regarding his wife. In my view however it was open to her Honour to reach this conclusion in relation to the considerable evidence given by the appellant on this topic. By way of example justifying the conclusion, the appellant said in his evidence-in-chief that he and his family "survive on [his] wife's carer's pension", whilst in cross-examination he said that he did not think that she received such a pension, but that he was not sure whether that was so.
7. Thirdly, the appellant instanced his evidence concerning the taking of illicit drugs. On this topic, the primary judge found that the appellant had asserted in examination-in-chief that he had never taken illicit drugs before 2014, whilst in cross-examination he said that he had made a mistake in giving that answer because he thought that the question concerned what he had done before the accident in 2012. The question could reasonably have been understood in this way but it was for her Honour to consider the appellant's evidence as a whole and decide whether the appellant did in fact so understand it.
8. Generally, her Honour relied on many matters going to the appellant's credit, including those that were identified in the respondent's first instance written submission on that topic which, as her Honour records, the appellant "made no attempt to rebut in detail". Nor did the appellant attempt to do so on appeal.
9. In summary, the appellant failed to demonstrate on appeal that the primary judge's adverse credit findings concerning the appellant were fundamentally flawed, in a manner that enabled them to be challenged in accordance with the principles stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] and [29]. The findings were not contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" (ibid). Indeed, because of the strength of the other evidence before her Honour, contrary, and therefore favourable, findings concerning the appellant's evidence would most likely have been open to challenge in accordance with these principles.

SEGMENTED FACT FINDING

1. The appellant criticised the primary judge's approach to determining who was the driver of the vehicle as involving impermissible segmentation of the decision-making process.
2. At the end of a number of sections of her judgment, the primary judge stated that determination against the appellant of the issue dealt with in the section was fatal to the appellant's claim. These sections included those dealing with the respondent's and the appellant's credibility. These statements were liable to give the impression that her Honour did not consider the evidence as a whole in reaching her ultimate conclusion. Whilst I do not consider that, when the judgment is read as a whole, this is likely to be an accurate impression, the language used should have been avoided.
3. The impression is unlikely to be accurate because, as her Honour had heard all of the evidence in the case, it cannot reasonably be supposed that when she dealt in her judgment with particular parts of that evidence she did not have in mind the views she had no doubt formed, and came to state elsewhere in the judgment, concerning the remainder of the evidence. For example, she must have been conscious when writing the section of her judgment on Mr Bezer's credit that the objective and expert evidence was, as she stated later in the judgment, strongly opposed to his evidence that he was not the driver of the vehicle. Her Honour should however have stated that before expressing a final view that his evidence should be rejected.
4. The appellant relied upon the recent reassertion in Nguyen v Tran [2018] NSWCA 215; (2018) 86 MVR 16 at [54] of the need for a tribunal of fact to "weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case" and the principle that a fact finding exercise is not properly approached in a segmented way (per Beazley P; Emmett AJA and Bellew J agreeing). These principles do not mean that the evidence on a particular issue or sub-issue cannot be examined separately, with preliminary views being expressed as to its effect. What must not occur however is the formation of ultimate conclusions before the whole of the evidence relevant to particular issues is taken into account. If the primary judge in this case had fallen into error of this type it would not however have been material: the ultimate issue of who was driving the vehicle at the time of the accident could not rationally be determined in favour of the appellant in light of the strength of the objective and expert evidence indicating that he was the driver. As it happened the primary judge's credit findings concerning the appellant and respondent supported the same outcome.

CONCLUSION AND ORDER

1. As the appellant has not established any material error on the part of the primary judge, the appeal should be dismissed with costs.
2. LEEMING JA: I agree with Macfarlan JA that the appeal should be dismissed. However, I do so for different reasons, because I consider that the fact finding process performed by the primary judge has miscarried, although not in a way that requires there to be a new trial.

The "segmented" approach to findings of fact

1. Mr Bezer complained in relation to what was described, by reference to Nguyen v Tran [2018] NSWCA 215; (2018) 86 MVR 16, as the "segmented" approach to findings of fact.
2. Three examples suffice to illustrate the point. At pages 11-12 of 100 of her judgment, the primary judge concluded a section of her reasons headed "The plaintiff's position in the vehicle after crash". The analysis was based solely upon the testimonial evidence of witnesses at the scene. For present purposes, the details do not matter, but it may be noted that that section of the reasons did not address the contemporaneous documentary evidence at all, except in one minor respect (insofar as the cross-examination of one witness was based upon a document). Her Honour concluded this section of her judgment as follows: "I find that the plaintiff was not in the passenger seat after the crash, although parts of his body covered that seat. I find that he was located towards the rear of the cabin of the vehicle, obviously resting on the lowest parts of the car, being the passenger side and part of the roof. He had not moved since the vehicle came to rest after the cash. The plaintiff was not in the passenger seat when the vehicle crashed. The issue here is which of the plaintiff and the defendant was driving, expressly on the basis that the other was in the front passenger seat. The plaintiff's claim fails at that point."
3. The reasons then turn to another aspect of the evidence, the front passenger seatbelt. Matters such as the effect of the contemporaneous documents, and the credibility of the parties, were considered later. Mr Bezer complained that he had lost the case at that stage: "The segmental point is a separate question and the way her Honour structured her judgment it is irresistible that it's segmental. I think we've lost the case at p 12 of her reasons, I think we've lost it again at p 20 and that's before there's any consideration of anyone's version about this."
4. The section dealing with the front passenger seatbelt addressed, among other things, Mr Keramidas' evidence addressed below when dealing with the notice of contention. Once again, for present purposes, the details do not matter. This section concluded at p 20: "The expert evidence is overwhelmingly consistent on the point that the passenger seatbelt was in use; it would not have fitted the plaintiff; but it would have fitted the defendant, who was wearing a seatbelt. I place no weight on Dr Gibson's later conjecture/speculation that the crease may have been caused at another time. There is no evidence supporting that possibility/conjecture. I find that the defendant was the passenger, not the driver. The plaintiff's claim fails at that point."
5. Thirdly, at pages 26-38, under the heading "The defendant's version", the primary judge recorded her analysis of the testimonial evidence given by Mr Bassan, and the attacks upon it. This section concluded: "The defendant emerged as a credible and reliable witness, whose evidence I accept. I accept the defendant's submissions that: 182 ... the defendant promptly sought to 'set the record straight' on the day of the accident in conversations with members of his family. The evidence of the defendant, Mindy Bell and Diane Bassan would be accepted in this respect. ... 184 The defendant has consistently maintained this position since the day after the accident. The defendant's evidence in this respect would be accepted and it would be accepted that he made the initial admissions having been pleaded to do so by his step brother in the most difficult of circumstances. 185 For the reasons set out above, the defendant contends that the evidence of Troy Bassan would be preferred over the evidence of the plaintiff Christopher Bezer. The defendant gave his evidence in a direct and forthright manner and his credibility was not impugned. The Court would accept the defendant's explanation for the admissions made to attending ambulance and police. The plaintiff's evidence generally lacked credit, as discussed above and the Court would not accept the plaintiff's evidence that he was the restrained front seat passenger in the vehicle at the time of the accident. 186 In any event, it is the defendant's contention that the remaining evidence overwhelmingly corroborates the defendant's case that he was the restrained front seat passenger at the time of the accident ... That finding also defeats the plaintiff's claim."
6. That assessment was made before her Honour turned (as she did immediately thereafter) to the assessment of Mr Bezer's credit. This occurred even though her Honour stated that she "accepted" the written submissions made on behalf of Mr Bassan, including that "[t]he plaintiff's evidence generally lacked credit".
7. The parties were agreed that it would be wrong for the primary judge to adopt a "segmented" approach to findings of fact. They accepted what had been said by Beazley P in Nguyen v Tran at [54], where a judge had expressed views based on some but not all of the evidence relevant to a particular issue: "The fact finding exercise which is required to be undertaken by the tribunal of fact, whether that be judge or jury, is not properly approached in that segmented way. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case."
8. The primary judge had the burden of resolving a highly contentious factual dispute, albeit that liability turned on a single issue: who had been driving the vehicle. There were only two possible answers to that question, but there was a wealth of evidence which bore upon it after a 25 day trial. No differently from most trials, that evidence was not independent. It was inter-related. The most obvious aspect of the inter-relationship was the testimonial evidence of the parties. Either Mr Bezer or Mr Bassan was not giving an accurate account of what had occurred. Indeed, it was put to the primary judge, and I understood it to be common ground in this Court, that at least one of those men was perjuring himself.
9. That starkly illustrates the inter-relationship. A final assessment of the credit of Mr Bezer could not properly be undertaken in isolation from an assessment of the credit of Mr Bassan. Any final determination as to whether one man was believed carried with it the necessary consequence that the other man was not to be believed.
10. Of course, it would be equally wrong to undertake a final assessment of the credit of either man based on their testimonial evidence alone, without regard to the documentary evidence and testimonial evidence of the witnesses, insofar as that bore upon the ultimate question of who was the driver. Once again, this litigation starkly exposes the inter-relationship. Highly relevant to the question was the fact that there was a body of evidence to the effect that Mr Bassan told people in the immediate aftermath of the accident that he had been the driver. Further, highly relevant to that question was the scepticism expressed by some who heard Mr Bassan's story, and the nature of Mr Bassan's explanation for why, according to his evidence, he had lied at the time.
11. I agree with Macfarlan JA that the language used by the primary judge is better avoided. I was initially attracted to the characterisation given by Mr Rewell, who appeared in this Court but not below for Mr Bassan, to the effect that the difficulty was merely one of expression: "The primary judge unfortunately used, four times, according to my count, the words, fatal to the plaintiff's claim, when in fact what her Honour was doing was examining one by one the issues of fact in the case. This was a difficult case, and in fairness to her Honour a difficult case to write a judgment on because there were a large string of factual issues, and her Honour had to deal individually with the various factual issues that were elemental to the appellant's case. What her Honour intended to say, as we read the judgment, is that on factual issue one the plaintiff has failed to persuade the Court that the fact is as he asserts."
12. As Payne JA notes, there is a multitude of ways in which a trial judge can express his or her reasons. However, notwithstanding that the reasons are to be read as a whole, and bearing in mind that the lengthy judgment must have been written over time, and not necessarily in the same order as it appeared when delivered, I consider that the problem is substantive, rather than formal.
13. When a judge says or writes that a particular finding is "fatal" or "dispositive" or "determinative" or in some other way conveys its sufficiency as a justification for the Court's order, that language should ordinarily be taken at face value. Conversely, when a judge says or writes that a particular finding is not determinative, then that language should once again ordinarily be taken at face value.
14. Such language serves no purpose other than to indicate what is, and what is not, a sufficient chain of reasoning supporting a particular order. Judges are constantly seeking to explain, not least for the benefit of the unsuccessful litigant, why a particular result has been reached.
15. Judges often have leeways of choice as to the way in which their reasons support the orders which issue. Not uncommonly, a judge can choose to make a finding of fact or law dispositive, or alternatively may choose expressly to make one or more aspects of the reasoning non-dispositive.
16. Those choices have very familiar consequences. If there is more than one independent factual basis for, say, the dismissal of a plaintiff's claim, then an appeal will need to impugn all the bases which are said independently to sustain the court's order. If the question is one of law, then the precedential value of the court's decision is affected by whether the ruling on the point is dispositive or otherwise. These additional considerations as to the consequences of the judgment in the event of an appeal reinforce the proposition that not lightly ought it to be concluded that the primary judge did not mean what she wrote: see Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 at [59]-[60].
17. It is perhaps desirable to give some examples. There are cases where a plaintiff may fail on multiple independent bases. For example, a judge hearing a negligence action may find that (a) the defendant owed no duty, (b) if a duty were owed, it was not breached, (c) that any breach was not causative of any loss, and (d) the plaintiff suffered no loss in any event. In such a case, where a plaintiff will fail unless all of the elements of his or her cause of action are established, it is entirely appropriate to make findings as to each element, and to state that in each case the finding is dispositive of the cause of action. Alternatively, the judge may choose not to determine the question of duty, but assume (favourably to the plaintiff) that it is in the terms alleged.
18. A second example is that a judge may find in favour of a plaintiff, rejecting a statutory defence either because as a matter of law it is narrower than the defendant had submitted, or because as a matter of fact even on the widest view of the defence it is not made out. If the judge takes the latter course, he or she has a choice whether or not to express a view as to its construction.
19. In both those examples, the approach adopted by the judge will determine the precedential status to be given to the decision insofar as it is authority for the question of law (namely, the existence of a duty of care or the construction of the statute). As Devlin J explained in Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 24: "[T]he practice of making judicial observations obiter is also well established. A judge may often give additional reasons for his decision without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance."
20. But the present case presented (insofar as it concerned liability) a single issue of fact. One of the two men in the car was driving it, and the other was not. On no view was Mr Bezer's testimonial evidence probative of that issue independently of Mr Bassan's; as noted above, one man's testimony was inevitably untrue. Each man's evidence fell to be assessed in light of the cross-examination, but also against the balance of the testimonial and documentary evidence, and the inherent probabilities of the case.
21. The primary judge used language which unambiguously conveyed her view that the plaintiff's case had failed by reason merely of what had been said in the first 12 pages of a 100 page decision, language which was repeated at page 20 and page 38. I think that those words must be taken to bear their ordinary meaning, and the judge intended to say that the first way, independently of the following 88 pages, on which the claim was to be dismissed was what flowed from her analysis of the testimonial evidence on the plaintiff's location in the aftermath of the accident. I think that the same is true of the second example, in effect that the seatbelt evidence was, independently of what was said in the following 80 pages, dispositive of Mr Bezer's claim.
22. The third example is if anything even clearer. Part of the reasoning in the immediately following section, when dealing with the plaintiff's lack of credit, was the following passage at p 43: "I prefer the defendant's evidence generally, from which it follows that I prefer the defendant's version of what happened that morning and the previous evening. Approaching the matter on the basis that the defendant's version of the events of the night of 5 September 2012 and the purpose of the journey on 6 September 2012 is correct, and the plaintiff's version wrong, compels rejection of the whole of the plaintiff's version. That is the better approach conceptually; and is consistent with my assessment of the plaintiff's credit and reliability. That is fatal to the plaintiff's claim."
23. True it is that the first sentence of that passage suggests that, in a conventional fashion, the primary judge was working on the general basis that Mr Bassan's testimonial evidence was to be preferred when it conflicted with Mr Bezer's testimonial evidence, other things being equal. However, the second sentence seems to proceed on the basis that the favourable approach given to Mr Bassan's evidence "compels" the rejection of Mr Bezer's evidence. That tends to confirm that when her Honour concluded, five pages earlier, that Mr Bassan was to be believed, and that "this defeats the plaintiff's claim", her Honour meant what she said, and that it also entailed a rejection of Mr Bezer as a witness of credit.
24. Her Honour then went on to say, immediately after the statement that "That is fatal to the plaintiff's claim", that: "For the present purpose, contrary to my general credit findings, I have considered the plaintiff's version of the events of the night before and the lead up to the accident at face value ..."
25. Once again, that approach of expressly considering the plaintiff's testimony, contrary to what had previously been decided, tends to confirm that her Honour was proceeding on the basis that there were multiple independent bases for rejecting the claim, one of which had already been expressed.
26. I accept Mr Bezer's submission that this reflects a miscarriage of the process of finding facts. The starting point is what is common ground or incontrovertible. That included the general nature of the motion of the vehicle, the fact that one occupant was relatively uninjured and the other relatively seriously injured. It also included the fact that only the passenger's seatbelt had been worn (the primary judge so found, for reasons given at pp 20-21, and there was no challenge to that finding in this Court). But it was not possible, in the facts of this case, to make findings as to who was driving the vehicle based only on a survey of some but not all of the evidence which bore on that issue. To the contrary, as Samuels JA said, it was an "incident of judicial duty for the judge to consider all the evidence in the case": Mifsud v Campbell (1991) 21 NSWLR 725 at 728.

Notice of contention

1. By his notice of contention, Mr Bassan maintained that the judgment could be sustained independently of all of the remaining evidence by the opinion of Mr Keramidas that the passenger seat belt could only have been worn by Mr Bassan. I disagree.
2. Mr Keramidas gave evidence as to the length of the seatbelt on the passenger side which, undoubtedly, was being worn at the time of the accident. In his view, based on the crease which he said reflected its extension at the time of the crash, could not have been worn by Mr Bezer. The opinion turned on the happenstance that Mr Bassan was a very small man (the hospital records note he weighed 42.9kg) while Mr Bezer was much larger and some 100kg heavier. However, the evidence was controversial, turning as it did upon a series of assumptions which so far as I can see were not fully articulated by Mr Keramidas.
3. The starting point of Mr Keramidas' opinion was a photograph which had been supplied by Mr Bezer's solicitors to Dr Gibson, which appeared to show a crease in the belt corresponding to where, at the time of impact, the belt had passed through the buckle. Mr Keramidas expressed the view that the location of the crease was consistent only with that passenger seatbelt being worn by Mr Bassan. However, there was (at least so far as the Court was taken to) no disclosure of the methodology pursuant to which Mr Keramidas expressed that opinion. It may well be unimpeachably correct. However, so far as I can see, it depended upon (a) an opinion about the extra length required for the horizontal lap of the belt to pass around Mr Bezer's as opposed to Mr Bassan's waist; (b) an estimate from what was disclosed only in part on the photograph, namely, precisely where the crease was along the strap; (c) some understanding of how much additional belt length was required for Mr Bezer's torso as opposed to Mr Bassan's; and (d) some understanding of how much further into the seat Mr Bezer would have sunk, bearing in mind that it was partly reclined. In light of those assumptions, all of which were contestable, I would not regard Mr Keramidas' opinion as dispositive.
4. Thus, I do not consider that the judgment could be sustained solely on the basis of Mr Keramidas' opinion.

No retrial is necessary

1. Mr Bezer accepted, candidly, that success on appeal could not result in a verdict in his favour, but, at best, a retrial. However, there may only be a retrial if it appears that some substantial wrong or miscarriage has been occasioned: UCPR r 51.53. I do not consider there has been any substantial wrong or miscarriage in Mr Bezer's claim being dismissed, because I do not consider that Mr Bezer has been deprived of the possibility of a successful outcome: see Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [38].
2. The starting point in this case, no differently from most litigation which turns on disputed questions of fact occurring years before the trial, is the contemporaneous documentary evidence.
3. Contrary to the oral submissions of the appellant, it is not the case that there were no contemporaneous documents supportive of Bassan being a passenger.
4. The two most important documents were both prepared within two or three hours of the accident. The first in time was the case description prepared by the ambulance officer Michael Edwards, tendered without objection by Mr Bezer, which was as follows: text version (33.6 KB, rtf)
5. It is highly significant that Mr Edwards referred to "THIS 19YOM 'DRIVER' PRESENTED ...". Punctuation matters. The only way in which the reference to the driver in inverted commas can fairly be read is that Mr Bassan stated that he was the driver, and that Mr Edwards was sceptical of the truth of the statement. Moreover, Mr Edwards' note supplies at least part of the explanation for that scepticism, which is that the seatbelt bruising was consistent with his being a passenger.
6. The second was the notes recorded by the triage nurse, Ms Barbara Bignell, tendered without objection by Mr Bassan, which included "patient states driver of vehicle with brother as passenger. Bruising left chest wall, consistent with being passenger". Once again, the divergence between what was recorded as the statement by Mr Bassan, and the different view of the trained observer, is powerful evidence of the scepticism of a person well-qualified to have an opinion as to how the injuries were sustained.
7. Both of those documents were especially probative, insofar as they were (a) the views of independent observers, who had no motivation to do anything other than record their opinions, (b) the views of experienced, trained observers, who were well placed to appreciate whether an injured person had been a passenger or a driver, and (c) views which were given, unprompted, and in response to the contrary history given by Mr Bassan.
8. Further, regard is to be had to the inherent probabilities of the situation. Both men were in the vehicle when it veered from the road, and went out of control, rolling over several times. The passenger seatbelt was worn, the driver's seatbelt was not worn. One of the men (Mr Bassan) suffered minor injuries and extricated himself from the overturned vehicle. The other (Mr Bezer) suffered extensive injuries to the entirety of his body. That of itself strikingly suggests that the former was wearing a seatbelt, while the latter was not.
9. It was important then for Mr Bezer to articulate a case theory which reconciled that evidence with his claim that he was a passenger. That did not occur. The documents were also prominent in the written and oral submissions of Mr Bassan in this Court. There was a suggestion that, perhaps, the hospital notes were influenced by the views of the ambulance officers. That is perfectly possible, although I do not understand it to have been part of the case advanced at trial. But if so, that merely means that there was only one, rather than two, well qualified trained observers who saw Mr Bassan's bruising and was immediately sceptical of his version of events. Save for that, no answer was made to the evidence and the inherent probabilities of the situation.
10. The two documents to which I have referred do not stand alone. In addition there was a wealth of evidence, which Macfarlan JA and Payne JA have summarised, pointing to Mr Bassan being the passenger who had suffered bruising from being restrained by his seatbelt.
11. To this is to be added the testimonial evidence of the parties. Mr Bassan accepted that he had originally said he was the driver, but then explained when and why he had changed his story. His explanation (namely, to protect the plaintiff, who he believed was unlicensed), is not inherently improbable. "Q. Just doing the best you can, what, if anything, was said, either by you or Chris? A. At one point Chris had said, 'Mate, can you - I don't have a licence, can you say you were driving for insurance reasons'. Q. And did you say anything in response? A. I said yes."
12. In fact, Mr Bezer had been charged with driving without a licence on a number of occasions, including as recently as 16 July 2012.
13. Mr Bezer on the other hand maintained that Mr Bassan's original version was the truth, and should be accepted over his sworn evidence. But the difficulty he faces is that it is a known fact that one of the men's evidence cannot be accepted, and Mr Bezer's testimony cannot be reconciled with the matters summarised above.
14. Of course, the primary judge had the advantage of seeing the entire trial unfold, and of seeing the parties give evidence and their extensive cross-examination. But her Honour formed a very unfavourable view of Mr Bezer. Declining to order a retrial in no way undermines the regard and deference which is to be given to the trial judge's assessment of a witness.
15. In very large measure, the other complaints made by Mr Bezer were the failure by the primary judge fully to deal with aspects of the evidence which tended to support his case. This, with respect, misapprehends the nature of the exercise. It is never necessary to deal with all the evidence: Mifsud v Campbell at 728D. What was apt to be dispositive in a case such as this is independent contemporaneous documentary evidence (noting that the accident had occurred some five years before witnesses were giving evidence of it) which was squarely directed to the point, especially if made by disinterested and trained observers.
16. As Mr Bezer submitted, there was a great deal of evidence supportive of the appellant's case. There was a deal of evidence that he was the passenger. However, that evidence did not undermine acceptance of Mr Bassan's case, given that on his case he had falsely volunteered that he was the driver. Nor did that evidence explain the contemporaneous evidence in the notes made by Mr Edwards and Ms Bignell, or the inherent probabilities following from the serious injuries sustained by much of Mr Bezer's body, in contrast with the relatively minor injuries sustained by Mr Bassan.
17. Likewise, there was also a deal of evidence that Mr Bezer had bruising consistent with him having been wearing a seat belt. But it is one thing for there to be evidence of bruising which is consistent with a seat belt; Mr Bezer sustained multiple injuries as the vehicle rolled. It is another for trained observers to identify that the seat belt markings he saw on Mr Bassan were inconsistent with him being the driver.
18. The undemanding test of relevance imposed by s 55 of the Evidence Act 1995 (NSW) means that all evidence which has been adduced will be evidence which can rationally affect the assessment of the probability of a fact in issue. It is trite that not all evidence has the same value. The metaphor of a trial judge "weighing" the evidence is familiar (as are cognate notions of the "weight" of the evidence and a judge "leaning" or "inclining" towards a view but ultimately, it is hoped, exercising a "balanced" judgment). But, contrary to the tenor of some of Mr Bezer's submissions, forensic victory on an issue is not achieved merely because more witnesses, or more pieces of paper, provide evidence which, considered in isolation, is probative of the position for which one party contends. That is not how contested facts are determined.
19. What is dispositive in the present case is the absence of any evidence to undercut the notes made by Mr Edwards and Ms Bignell. Those notes were highly probative, given the circumstances in which they came into existence, the skills of their authors and their status as independent disinterested observers. They also accorded with the inherent probabilities of the situation. They were only directly contradicted by the testimony of Mr Bezer, and he gave no explanation (either by way of evidence or submission) for how his account of the accident was to be reconciled with what Mr Edwards and Ms Bignell saw and recorded. And it was a known fact that the testimony of one of Mr Bezer and Mr Bassan could not be accepted.
20. It follows that although I have accepted the force of part of Mr Bezer's complaints as to the way in which the primary judge gave reasons explaining her Honour's process of fact finding, there is no injustice in the result which was reached by the primary judge. My conclusion that Mr Bezer was not deprived of the possibility of a successful outcome turns on the fact that the observations of Mr Edwards and Ms Bignell, and other witnesses who saw Mr Bassan's bruises, documented contemporaneously in their notes, were plainly reliable and highly probative, as well as according with the inherent probabilities, and were only directly contradicted by the testimony of Mr Bezer, who in any event gave no explanation for why what had been recorded by Mr Edwards and Ms Bignell was, on his case, erroneous.
21. Grounds 1-7 and 9-11 addressed the ultimate question of fact in this case, at varying levels of abstraction. They were not separately addressed in Mr Bezer's written or oral submissions. They are sufficiently addressed by what has already been said.
22. Ground 8 raised a discrete point as to the admission of the joint report. I agree with Macfarlan JA, for the reasons he gives, that this ground is not made out.
23. Grounds 12-14 concern damages. The trial judge made a hypothetical determination of damages, in accordance with the usual (and desirable) practice. Almost no oral submissions, and almost no written submissions, were directed to damages. In circumstances where those issues were given such little emphasis during a two day hearing, and where they can have no impact upon any order this Court will make, it is appropriate, having considered the point in accordance with Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12], not to address grounds 12, 13 and 14.
24. PAYNE JA: I have had the benefit of reading the judgments of Macfarlan JA and Leeming JA in draft. I agree with the orders proposed by Macfarlan JA, essentially for the reasons given by Leeming JA. To those reasons I would add the following remarks which are not intended to be inconsistent with Leeming JA's reasons.
25. First, this was a very unusual case. It involved only one issue: had the appellant proved that the respondent was driving the vehicle at the time of the accident. The relevant principle called in aid by the appellant, explained most recently by Beazley P in Nguyen v Tran, provides no more than that a tribunal of fact must weigh the whole of the evidence before determining whether the party bearing the legal onus of proving the case has succeeded. As the passage quoted by Leeming JA from Nguyen v Tran makes clear, there is no separate requirement that credit issues, or any other issues of fact or law, must be addressed in any particular order or either before or after considering other issues. Subject to compliance with the principle described in Nguyen v Tran, there is no one correct way for a trial judge to express his or her reasons.
26. Secondly, the language used by the primary judge demonstrates that her Honour determined that the appellant, as the party bearing the legal onus of proving the case, had failed on the ultimate issue before her Honour had considered all the relevant evidence which addressed that question. That occurred when her Honour found that "the plaintiff's claim fails at this point" (at page 12 of 100 after a discussion of the body position of the appellant in the car when the car had come to rest following the accident), "the plaintiff's claim fails at this point" (at page 20 of 100 after a discussion of the expert Mr Keramidas' evidence) and "that is fatal to the plaintiff's claim" (at page 43 of 100 after a discussion of the respondent's credit).
27. This is not a case where the primary judge had merely expressed conclusions about the credibility and reliability of the appellant or any other witness before turning to address the remaining evidence. Observations by a judge about the credibility and reliability of witnesses who have given evidence are often made separately and before addressing any other issues. There would have been no basis for complaint if her Honour had merely recorded, as is often done, for example, that a particular expert witness had an impressive grasp of the issues or that having seen the appellant give evidence, there were many unsatisfactory elements of his evidence and her Honour proposed not to accept that evidence unless it was consistent with or supported by other evidence. What makes this case different is that despite there being only one issue in this case her Honour went much further. I accept as correct Mr Campbell SC's complaint that "…the way her Honour structured her judgment it is irresistible that it's segmental. I think we've lost the case at p 12 of her [100 page] reasons, I think we've lost it again at p 20 and that's before there's any consideration of anyone's version about this."
28. Thirdly, however, as Leeming JA explains, this is a case where despite error having been found there is no substantial wrong or miscarriage occasioned by the appellant's claim being dismissed: UCPR r 51.53. In many cases a finding that a trial judge erred in determining the ultimate issue without considering all of the evidence will lead to a new trial. This is not such a case. As Macfarlan JA's reasons demonstrate, there was overwhelming contemporaneous evidence that the respondent suffered bruising only consistent with him being restrained by the passenger side seat belt. The powerful contemporaneous documentary evidence in the case, prepared by disinterested witnesses, was consistent, and only consistent, with the respondent's case. Despite the absence of objection to the admissibility of these documents or any argument in this Court about opinion evidence, Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 requires determination of the question of whether any representation contained in those documents is, in truth, opinion evidence excluded by s 76 of the Evidence Act. The contemporaneous observations of bruising on the respondent were not inadmissible opinions. Those observations of bruising were proved by admissible expert accident reconstruction and medical opinion to be consistent with seat belt bruising. To the references given by Leeming JA about those contemporaneous observations of bruising on the respondent I would add the notes of the junior medical officer Ms Meredith who made contemporaneous notes of her observations of the respondent, in which she noted "seat belt bruising to right ASIS and left ASIS" (referred to by Macfarlan JA at [31]), Mr Edwards' additional note of his contemporaneous "secondary survey" of the respondent, in which he noted "Right cervical region pain; Lumbar region pain, Right abdomen (Generalised) bruising/haematoma >> SEATBELT BRUISING; Central Chest Bruising/ haematoma >> SEATBELT BRUISING", Mr Edwards' supervisor [Mr Todhunter's] September 2013 police statement (referred to by Macfarlan JA at [24]) that "I observed the [respondent] to have what appeared to be a seatbelt injury/bruising across his abdomen and across his chest. It just looked as though a seat belt had been there" and the NSW Police computer "COPS" entry which recorded that on 7 September 2012 "It was observed that [the respondent] had bruising across his chest consistent with that of a seatbelt marking" (referred to by Macfarlan JA at [27]). The expert medical evidence at the trial was unanimous that bruising of the kind described in these observations was consistent with the respondent being restrained by the passenger side seat belt. The accident reconstruction experts went further and agreed that the observations of bruising on the respondent's left shoulder, chest and hips could only have been caused by the passenger side seat belt. There was no evidence of any observations of bruising on the appellant's chest or shoulder consistent with his being restrained by the passenger side seat belt. To the contrary, the appellant's treating doctor, Dr Harrison, accepted that the appellant showed no signs of bruising across his chest consistent with his being restrained by the passenger side seat belt. There is no substantial wrong or miscarriage occasioned by the appellant's claim being dismissed.
29. I also agree with Macfarlan JA, for the reasons he gives, that ground 8 of the appeal relating to how her Honour dealt with the appellant's objection to the tender of material in the joint expert report should be rejected. I agree with what Leeming JA has said about the Notice of Contention and the appellant's remaining grounds of appeal.

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