Bradley v Matloob

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. McCOLL JA: I have had the advantage of reading Beech-Jones J's reasons in draft. The facts are fully set out by his Honour, with whose reasons and proposed orders I agree. I would add the following observations.
2. I would be prepared to forgive the apparent inconsistencies in Mr Papageorgiou's identification evidence substantially for the reasons given by the primary judge that, in the circumstances in which he was involved in witnessing the accident, some details such as time, distance, and even features of the "at fault" driver's car, may have been confused.
3. As Mr Rewell of Senior Counsel, who appeared for the Nominal Defendant on appeal but not at trial, submitted, it would be a remarkable coincidence that Mr Papageorgiou could have wrongly identified the "at fault" vehicle (which it was beyond controversy he identified at the time as a vehicle of the same model as Mr Bradley's) when he had followed that vehicle into the complex where Mr Bradley worked, that vehicle having taken the same route from the intersection of Wallgrove Road and Old Wallgrove Road as Mr Bradley took when he turned right there to drive to his workplace - he also having turned right at that intersection at approximately the same time as the accident occurred. The circumstantial case was very strong.
4. However, Mr Bradley expressly denied having been the "at fault" driver. As Beech-Jones J has explained, it was not put to him that this evidence was false.
5. The Nominal Defendant's failure at trial to put to Mr Bradley that his denial he was the "at fault" driver was false was, prima facie, a breach of the rule in Browne v Dunn. [1] In that case, it was said to be: "… a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn." [2]
6. Counsel for Mr Bradley clearly raised in closing submissions the failure of counsel for the plaintiff and the Nominal Defendant to challenge the truth of his evidence. The primary judge did not deal with it in his reasons, in which he effectively found that Mr Bradley had perjured himself. The rule in Browne v Dunn, being one of fairness, applied equally to the primary judge as to counsel. [3]
7. Although non-compliance with the rule in Browne v Dunn does not mean that the court is obliged to accept the evidence of the witness in question, for example where the evidence is inherently illogical or unreliable, or where the opposing party calls evidence of a substantial nature directly contradicting the evidence on which there was no cross-examination, in many cases it would be wrong, unreasonable or even perverse to reject evidence upon which there has been no relevant cross-examination. [4]
8. In this case, despite the compelling circumstantial case to which Mr Rewell pointed, Mr Bradley's evidence was not inherently illogical or unreliable, particularly when one has regard to the evidence the Nominal Defendant apparently accepted (it having extracted his agreement with it in cross-examination) that Mr Bradley would have been "well and truly aware" of coming "within a metre of an oncoming car as [he] made a right hand turn." [5]
9. It is clear in the circumstances that the primary judge's failure to deal with that issue means the process of fact finding has miscarried. As the Nominal Defendant conducted the trial on the basis of not directly challenging Mr Bradley's denial of being the "at fault" driver, I agree that there is no substantial wrong or miscarriage warranting a retrial. [6]
10. LEEMING JA: I agree with Beech-Jones J, for the reasons his Honour gives, that the appeal must be allowed, the judgment entered against Mr Bradley set aside and in its place a judgment be entered against the Nominal Defendant. Without detracting from any aspect of his Honour's reasons, I wish to add by way of elaboration the following, which presupposes familiarity with, and does not repeat, the evidence and course of the trial as recounted in his Honour's judgment.
11. The contest in this appeal was between Mr Bradley and the Nominal Defendant. Ms Matloob who appeared by her tutor was a necessary party to the appeal, although it was not suggested that she would be in any material way affected by its outcome. Mr Bradley's car was identified by the only witness Mr Papageorgiou, but Mr Bradley denied both (a) being involved in the accident, and (b) the possibility that the accident could have happened in the manner described by the witness without his being aware of it. Both Mr Bradley and the witness Mr Papageorgiou gave accounts to police a few hours after the accident occurred.
12. At the outset of the trial, the sole issue was the identity of the vehicle which caused the accident. Damages were agreed, and there were no live questions of causation, contributory negligence or want of due inquiry and search so as to permit a claim to be made against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW). The resolution of the sole outstanding issue turned on (a) whether Mr Papageorgiou's identification of Mr Bradley's vehicle was correct or mistaken, (b) whether Mr Bradley's contention that the accident could not have happened without his being aware of it was to be accepted, and (c) if so, whether Mr Bradley was lying as to his lack of involvement (and had been lying when interviewed by police on the day of the accident; there could, given the timing, be no suggestion of this being merely a case of faulty recollection on the part of Mr Bradley).
13. Mr Bradley was the last witness. The Nominal Defendant cross-examined after the plaintiff. The cross-examination of Mr Bradley by the Nominal Defendant had proceeded on the basis that if he had been the driver who caused the accident, he "would well and truly be aware of" Ms Matloob's vehicle. The Nominal Defendant did not put to Mr Bradley that he was lying. Nor had the plaintiff. That necessarily meant that the trial judge could not, as a matter of basic procedural fairness, reach any such conclusion: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [67]. The third sub-issue (c) identified above had to be resolved favourably to Mr Bradley.
14. The primary judge gave only limited reasons addressing the key issues. The whole of his Honour's reasoning on the identity of the vehicle which caused the accident is at [34]-[37], which Beech-Jones J has reproduced. The primary judge did not address the question whether Mr Bradley must necessarily have seen Ms Matloob's vehicle or heard the collision which ensued at all. That he must have done so was not only his evidence, but also that of Mr Papageorgiou.
15. The primary judge did address two major inconsistencies in the evidence of Mr Papageorgiou (as to the colour of the vehicle and whether it had a plastic grille across its rear window). His Honour did not address any of the other difficulties with Mr Papageorgiou's account. One of those difficulties was his acceptance in cross-examination that Mr Bradley's vehicle was "not the offending vehicle". Against this, it must be noted that that unequivocal evidence was permitted to be reversed by a leading question in re-examination, to which no objection was taken. (There may have been a good reason for that unusual course to have been taken, but if so it does not appear from the appeal books.) Another difficulty was that Mr Papageorgiou's evidence as to distance was inconsistent. For example, he said he saw the vehicle which caused the accident turn left after it had driven 150 metres along Old Wallgrove Road. Mr Bradley said that Southridge Street, where he worked and where his vehicle was parked, was "600 maybe 700 metres" along that road (this also appears from the map in evidence, although its scale is only partially reproduced in the appeal books).
16. Much more serious than the failure to address the criticisms of Mr Papageorgiou's evidence (which of itself might not amount to appellable error) was the failure to "grapple" or "wrestle" with the competing evidence and submissions advanced by Mr Bradley. One consequence is that the primary judge concluded that Mr Bradley's negligence caused grievous injury to Ms Matloob, but without regard to his denial that it was him and his assertion that it could not have been him without his knowing. Further, there were other matters of inherent implausibility on which Mr Bradley relied, such as his claim that he had his headlights on, in contrast with Ms Matloob, consistently with his having passed through the intersection some 10 or 15 minutes before the accident occurred, to which no attention was given.
17. It is well established that where there is a real conflict in the evidence, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party": see for example Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], Coote v Kelly [2013] NSWCA 357 at [39]-[52] and Keith v Gal [2013] NSWCA 339 at [109]-[119]. As was said in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 at [53], the point of the metaphor of "grappling" is that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]. There are two overlapping reasons for this. The first appears from the often quoted statement by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]: "Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried."
18. The second emerges from the opening paragraph of the joint reasons of Mason P, Ipp and Tobias JJA in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [1]: "[J]udges' duties to give reasons are ... designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party."
19. Here, the consequence of the failure to explain why Mr Bradley's evidence and submissions were rejected has produced the result that he was not accorded basic fairness, and, to the extent that the reasons of the primary judge were unstated, they cannot be tested on appeal. The importance of the reasons and outcome to Mr Bradley personally, as well as to his insurer, is very substantial.
20. As Beech-Jones J notes, such a miscarriage of the process of fact-finding would ordinarily result in a new trial. Despite the weight of evidence supporting a conclusion that the at fault driver seen by Mr Papageorgiou must have seen or heard Ms Matloob's vehicle, I doubt that this Court could make such a finding, without seeing Messrs Bradley and Papageorgiou give evidence, and without evidence of, especially, whether Mr Bradley's car windows were open and whether his car radio was on.
21. However, this is an unusual case. The only two parties with a direct interest in the issue - Mr Bradley and the Nominal Defendant - both conducted the trial on the basis that Mr Bradley could not have failed to notice Ms Matloob's vehicle. Further, the Nominal Defendant did not advance a case of fabrication. In those circumstances, there need not and therefore should not be a retrial: UCPR r 51.53. Only if the Nominal Defendant were permitted to confront Mr Bradley with the claim that his evidence was fabricated could the outcome be other than a verdict against the Nominal Defendant. Having regard to the way the trial was run, the Nominal Defendant should not be permitted to take that course. (To be clear, senior counsel for the Nominal Defendant, who had not appeared at trial, did not make any submission to the contrary.)
22. In reaching that conclusion, I have had regard to the different stance adopted by the plaintiff, who did put to Mr Bradley that "you may well have continued journeying down Old Wallgrove Road because you had no knowledge of the serious accident which occurred behind you", which Mr Bradley denied. However, what matters for present purposes is the attitude of the active party, the Nominal Defendant, rather than that of the plaintiff. That is because the question of a new trial turns on whether it is necessary to avoid some substantial wrong or miscarriage. There is no wrong or miscarriage of justice in holding the Nominal Defendant to a course taken in the first trial. And there can be no substantial wrong or miscarriage to the successful plaintiff, who is relevantly unaffected by the outcome, and indeed whose counsel accurately acknowledged, immediately after the completion of Mr Bradley's cross-examination that: "[I]t's really a dispute between the two defendants as to whether or not it's Mr Bradley or an unidentified vehicle. And I'm not being discourteous when I say whatever outcome your Honour takes ... quantum having been resolved, the outcome to the plaintiff is the same."
23. I agree with the course proposed by Beech-Jones J.
24. BEECH-JONES J: Shortly before 7:00am on 18 June 2009 the First Respondent to this appeal, Ms Katreen Matloob, was driving north on Wallgrove Road towards the intersection with Old Wallgrove Road near Eastern Creek. At that point Wallgrove Road consists of two lanes in both directions. Ms Matloob was driving in the lane closest to the centre.
25. As Ms Matloob approached the intersection another vehicle travelling south on Wallgrove Road moved into the intersection for the purpose of turning right into Old Wallgrove Road. The undisputed evidence of an eye witness, Mr Jim Papageorgiou, was that this car then accelerated across the intersection into the path of Ms Matloob's vehicle. Ms Matloob swerved to avoid a collision, but she lost control of her vehicle. According to the primary judge, her vehicle then "fish tail[ed]" across the centre concrete median strip of Wallgrove road just north of the intersection and collided with a truck that was parked on the edge of the left most lane of Wallgrove Road pointing southwards.
26. Ms Matloob was seriously injured. She sued the appellant, Steven Paul Bradley, alleging that he was the driver of the other vehicle described by Mr Papageorgiou. She also sued the Nominal Defendant against the contingency that the Court did not accept that Mr Bradley was the at fault driver who caused the accident.
27. The sole issue in the proceedings at first instance was whether the at fault vehicle was owned and driven by Mr Bradley or an unidentified driver. Damages were agreed, as was the issue of due search and enquiry. There was no real contest concerning negligence.
28. The primary judge found that Mr Bradley's car was the vehicle at fault and he was the driver. Accordingly, his Honour entered a judgment for damages in the agreed amount in favour of Ms Matloob against Mr Bradley and dismissed the proceedings against the Nominal Defendant.
29. Mr Bradley now appeals the judgment entered against him. He contends that the primary judge erred in accepting Mr Papageorgiou's evidence identifying his vehicle as the vehicle at fault as reliable. He also contends that the primary judge erred in failing to address and resolve a submission made on his behalf that the driver of the vehicle at fault must have realised they caused an accident or a near miss. On behalf of Mr Bradley it was contended that, if that submission was accepted, it followed that, before he could be found liable, it would have to be found that he lied to the police and to the Court in denying any knowledge of such an incident yet no suggestion or submission to that effect was made against him before the primary judge. For the reasons set out below I consider that this latter argument should be upheld and that Mr Bradley is entitled to have the judgment against him set aside.
30. To explain this conclusion it is necessary to describe the evidence and submissions before the primary judge before addressing his Honour's judgment.

The evidence at the hearing

1. It was common ground that, due to the severity of her injuries, Ms Matloob was not able to give evidence concerning the accident. Two witnesses were called on her behalf, namely Mr Papageorgiou and the officer in charge of the investigation into her accident, Senior Constable Wheeler. Also tendered on her behalf were various photographs of Mr Bradley's vehicle taken on the day of Ms Matloob's accident, Mr Bradley's record of interview with Senior Constable Wheeler, Mr Papageorgiou's statement to the police dated 1 July 2009, and a report from a traffic engineer, Mr Grant Johnson.
2. Mr Bradley gave evidence. Tendered on his behalf were photographs of certain vehicles that he contended possessed the features that Mr Papageorgiou said that Mr Bradley's vehicle displayed, but which it in fact did not, namely a brown tannish colour and a plastic grille on the exterior of the back window. Also tendered on his behalf was a memorandum prepared by Senior Constable Wheeler in November 2009 addressing whether charges would be laid against Mr Bradley and which recorded, inter alia, certain communications between the police and Mr Papageorgiou on the morning of the accident. Finally, there was also tendered a map of the area which contained a marking made by Mr Papageorgiou which is explained below.
3. In so far as he described the immediate circumstances of the accident, there were no differences of substance between Mr Papageorgiou's evidence in chief and his police statement. In his police statement Mr Papageorgiou said that on the morning of 18 June 2009 he was driving his 9 tonne tip truck with his headlights turned on. He said that at around 6.50am he was travelling west on Old Wallgrove Road and approached the intersection with Wallgrove Road. He said that by this time it was light but the weather was overcast and the roadway was still wet because it had only finished raining at 6:00am. His statement to the police continued: "6. I was at the intersection for a couple of minutes. I was just watching the cars pass me going left to right on Wallgrove Road. A tannish brown colour old model square shaped Ford sedan caught my eye as it was rolling slowly approaching the set of traffic lights on Wallgrove Road heading [in] a southerly direction. I noticed that the Ford didn't have the headlights switched on. The Ford was going about 10kmph as it was approaching the intersection. There are 2 lanes for south bound traffic on Wallgrove Road. 7. I was about 15-20 metres away from the Ford when I saw it approach and enter the intersection. There was nothing in my line of sight and the visibility was good. I sit very high in my truck and I can easily see other vehicles on the roadway, I was actually hunched over the steering wheel. 8. I saw the tannish brown colour Ford sedan cross the white line that commences the intersection of Wallgrove Road and Old Wallgrove Road. The Ford was still going about 10kmph and then I saw it go about 2 or 3 metres into the intersection still travelling in a straight direction. All of a sudden the Ford turned to the right into Old Wallgrove Road. I saw a white Volvo that was travelling in a northerly direction along Wallgrove Road enter the intersection as the Ford was turning right. The tannish coloured Ford basically turned right in front of the white Volvo. The Volvo did not have time to brake. I saw the white Volvo swerve to the right to miss the Ford sedan. The Volvo then swerved back to the left and then I lost sight of the Volvo momentarily as a truck went past and then I heard the collision. I don't know how the white Volvo missed the Ford sedan, it was practically in the intersection when the Ford started to turn right." (emphasis added)
4. The "white Volvo" referred to in this statement is Ms Matloob's vehicle. In his evidence in chief Mr Papageorgiou was asked when the Ford vehicle commenced its turn "are you able to say what distance it was from the white Volvo that you've referred to?" He replied "[w]ithin a metre. I'm surprised they didn't hit". He repeated this estimate of the distance in his evidence three more times. In cross examination he agreed that he heard the collision and that it was an "extremely loud noise".
5. In his police statement Mr Papageorgiou said that he saw the Ford vehicle turn into the left lane of Old Wallgrove Road and that "I noticed it had a black plastic [grille] across the back window". He observed it drive west on Old Wallgrove Road. He said that after "about five seconds" the lights flashed and turned green. He drove through the intersection and observed Ms Matloob's vehicle and said that then "I looked back and saw the tannish brown colour Ford sedan still going down Old Wallgrove Road". He said there were no cars between himself and the Ford sedan. His statement continued: "I started to follow the Ford and I saw the car turn left into a road that was about 150 metres west of the intersection of Old Wallgrove Road and Wallgrove Road. It then went right into the first factory unit. At no stage did I lose sight of the tannish colour Ford sedan as it is a long straight road and there are no factories or buildings on the side of the road so there was nothing impeding my view. I proceeded to my designation [sic] at 200 Old Wallgrove Road and waited for about 10 minutes for one of my employees to turn up and I went back down to where the factory was where the Ford turned into. I drove around the factory carpark and saw the tannish colour Ford sedan parked there. I got the registration of the tannish colour Ford sedan. I then drove around the whole carpark to make sure it was the only old tannish coloured Ford sedan in the carpark. I went back to the accident scene and saw police and told the police the registration of the Ford that was involved in the accident. I gave the police at the scene a statement and signed that statement in his notebook."
6. The statement signed by Mr Papageorgiou referred to in this extract was not produced at trial. However the memo prepared by Senior Constable Wheeler noted in [32] above recorded that Mr Papageorgiou had advised the police on the morning of the accident of the registration number, and stated that the vehicle was a "tannish coloured Ford Falcon". It is common ground that the registration number obtained by Mr Papageorgiou and provided to the police was that of Mr Bradley's vehicle. The vehicle was parked at 2 Southridge Street, which was the location of Mr Bradley's employment.
7. At around 11.30am on 18 June 2009 Mr Papageorgiou was contacted by Senior Constable Trainer. Mr Papageorgiou identified Mr Bradley's vehicle to Senior Constable Trainer. Senior Constable Wheeler's memorandum records Mr Papageorgiou stating at this time that he "remembered the black grille across the back window" of the vehicle. In his evidence before the primary judge, Senior Constable Wheeler was less certain as to whether Mr Papageorgiou mentioned the black grille at this point or later ("look from memory I can't recall if I was mindful of the black grille then or when he told me in his statement").
8. Senior Constable Wheeler took photos of Mr Bradley's vehicle. It was a Ford Fairmont apparently manufactured over twenty years previously. It was cream or light yellow in colour. There was no black plastic grille on the exterior of the back window. In his evidence before the primary judge Senior Constable Wheeler stated that he "carried out the inspection on that day in that car in situ right there and I didn't see anything that would suggest there was a black grille on the car".
9. At around 1.04pm on 18 June 2009 Senior Constable Wheeler interviewed Mr Bradley. He told Mr Bradley that he was investigating an accident that had occurred at 6.55am that day. Mr Bradley denied being aware of any accident. He said he travelled to his workplace that morning by his normal route which had involved him travelling south on Wallgrove Road and then turning right into Old Wallgrove Road. He said that when he travelled through the intersection it was "still slightly dark, I guess, wasn't raining", although "I didn't pay much attention". When he was asked approximately what time he travelled through the intersection he said "I would guess quarter to seven or something, yes". He stated that his headlights were turned on. He not only denied that after he turned through the intersection he heard any accident, he also denied noticing a "car travelling northbound on Wallgrove Road [taking] evasive action to miss [his] vehicle".
10. Mr Bradley's evidence in chief before the primary judge was consistent with his statement to the police, although by the time he gave evidence he could not recall whether his headlights were on. He stated that he had no recollection of a white Volvo being "within close proximity" to his vehicle as he was making a right hand turn, and re-stated that he did not hear any collision. Aspects of his cross examination are addressed below.
11. Senior Constable Wheeler's police statement recorded that, after the accident, Ms Matloob's vehicle came to rest approximately 88.3 metres north of the southern end of the intersection between Wallgrove Road and Old Wallgrove Road. He observed scraping marks on the median strip 72.8 metres north of the southern end of the intersection. Having regard to the damage to Ms Matloob's vehicle, Mr Johnston, a traffic engineer, estimated that its speed on impact with the truck was between 21 and 40 kilometres per hour. From this, he determined that Ms Matloob was "probably travelling at or very close to the prevailing speed limit of 60 kilometres per hour at the time" of the near miss at the intersection. Allowing for the width of the intersection of approximately 10 metres, this suggests that an approximate period of between four and five seconds passed between the time when Ms Matloob first swerved and when she collided with the truck.

The attacks on the reliability of Mr Papageorgiou's evidence

1. Before the primary judge and in this Court it was contended that there were a number of difficulties with the reliability of Mr Papageorgiou's evidence. At the forefront of the complaint was what were said to be two significant internal inconsistencies in his evidence. The first concerns his recollection of the colour of the vehicle that caused the accident. As noted, in his statement to the police Mr Papageorgiou described the vehicle as being a "tannish brown colour" or "tannish" colour. He appears to have advised the police at the scene that it was tannish colour. As noted, Mr Bradley's car was light yellow or cream coloured. In his evidence in chief Mr Papageorgiou was shown a photo of Mr Bradley's car and he stated that he considered it to be a "tannish colour". However, in cross examination Mr Papageorgiou was shown a photograph of another Ford vehicle that was gold or a shiny brown colour and he agreed that that was the colour of the vehicle that he saw ("tannish brown, yep").
2. The second matter concerned the presence of a black grille on the exterior of the back window. Mr Papageorgiou referred to that in his police statement dated 1 July 2009, although as noted it was not entirely clear whether he had made reference to it on the morning of the accident in his discussions with the police. In his evidence in chief Mr Papageorgiou reiterated his belief that the at fault vehicle had a black plastic grille fixed to the exterior of the back window. The photograph taken by Senior Constable Wheeler did not show any such grille and, as noted, Senior Constable Wheeler's inspection at the time the photos were taken did not reveal any evidence that a grille had been fitted.
3. In his evidence in chief Mr Papageorgiou was asked as follows: "Q. When you went to number 2 Southridge Road on this occasion [with his employee after parking his truck at his work place] can you tell the Court what it was about the Ford that you identified which caused you to believe that it was the car that you'd followed down the road? A. The square headlights, the tannish colour of it and a black grille across the back."
4. Needless to say, this evidence is curious given that the car that Mr Papageorgiou in fact identified did not have any external black grille. In cross examination he was shown a photograph of another vehicle with a black grille which he agreed was similar to the grille on the vehicle he saw cause the accident. Ultimately in cross examination he agreed as follows: "Q. In view of your evidence under oath this morning before his Honour you'd agree with me, would you not, that the vehicle shown in the photograph I've just shown you which has an 'A' in the top right hand corner [i.e. Mr Bradley's vehicle] was not the offending vehicle? A. Yes."
5. Nevertheless, in re-examination Mr Papageorgiou was again shown the photograph referred to in the above question (ie depicting Mr Bradley's vehicle) and was asked as follows: "Q. Well, come back to my question, to the best of your recollection is that the vehicle that you saw perform a right hand turn in front of the white Volvo? A. Yes."
6. Another matter that was raised concerning Mr Papageorgiou's evidence before the primary judge and in this Court concerned that part of his evidence in which he stated he returned to the car park and identified Mr Bradley's vehicle. In cross examination Mr Papageorgiou was shown a print-out from "Google Maps" of the area that had been produced on the morning of the hearing, ie 25 August 2014. Mr Papageorgiou stated that the Ford vehicle had taken the first road to the left off Old Wallgrove Road after the intersection with Wallgrove Road. He marked the first road to the left after the intersection on the map that was shown to him. It appears to lead to the corporate headquarters of "ITT Corporation" and it precedes the turn-off to Southgate Street. This was said to undermine Mr Papageorgiou's evidence which involved identifying Mr Bradley's vehicle at its address at 2 Southridge Street.
7. This aspect of the matter can be put aside for two reasons. First, at the hearing Senior Counsel for the plaintiff repeatedly objected to any reliance being placed upon the map that was presented to Mr Papageorgiou because it was produced five years after the accident and Mr Papageorgiou stated that there had been significant changes in the area ("This all is all changed now - it's all built up"). It was never established that the map shown to Mr Papageorgiou represented an accurate description of the area as at the time of the accident.
8. Second, Mr Papageorgiou's evidence was that ten minutes after he observed the Ford vehicle drive into the car park after turning left off Old Wallgrove Road he returned with a fellow employee to the same car park and identified Mr Bradley's vehicle. It was never suggested to Mr Papageorgiou in cross examination that in doing so he had returned to the wrong location.

Mr Bradley's credibility

1. In his written submissions before the primary judge, counsel for Mr Bradley pointed to the matters noted at [42ff] above as demonstrating the unreliability of Mr Papageorgiou's identification of his client's motor vehicle. He also referred to the time nominated by Mr Papageorgiou as to when the accident occurred (around 6:50am) and compared it with the evidence of Mr Bradley that he travelled through the intersection some time around 6.45am, and the evidence of Mr Papageorgiou that the at fault vehicle had its headlights turned off whereas Mr Bradley told Senior Constable Wheeler that his headlights were turned on. However, at their highest these discrepancies only operate to undermine Mr Papageorgiou's evidence if the starting premise is that Mr Bradley's evidence was honestly given and that the accident simply occurred in circumstances whereby he was careless and not cognisant of either the accident or a near miss.
2. Whether that premise was correct or not was a matter debated at the hearing. In cross examination Senior Counsel for Ms Matloob asked Mr Bradley as follows: "Q. Could it be that you executed a right-hand turn and you thought, 'Oh, that was close', but not so close as to worry and you kept on journeying down the road? A. No. Q. Are you sure about that? A. Yeah. I would have seen another vehicle coming, particularly with how close they said it was."
3. Later Senior Counsel suggested to Mr Bradley that he "may well have continued journeying down Old Wallgrove Road because you had no knowledge of the serious accident which occurred behind you". Mr Bradley responded by saying he had "no knowledge of an accident".
4. Counsel for the Nominal Defendant asked Mr Bradley: "Q. If you had come within a metre of an oncoming car as you made a right hand turn that would be something that you would well and truly be aware of, wouldn't it? A. Yes."
5. One matter raised in cross examination of Mr Bradley was whether, after he was questioned by the police, he undertook a "reconnaissance of the car park to see if there was another Ford". He replied "no". However the questioner did not suggest that he deliberately avoided doing this because he knew that he drove the at fault vehicle. In the end result, it was never expressly put or suggested to Mr Bradley that he was untruthful either when he stated to the police or when he told the Court that he had no knowledge of any incident or accident at the intersection (see [39] to [40]).
6. The written submissions provided to the primary judge on behalf of Ms Matloob did not make any submission adverse to the credibility of Mr Bradley. The Nominal Defendant's written submissions contended that it was "not possible on the evidence to conclude whether Mr Bradley must have been aware of having caused an accident", but added "it is not necessary to make such a finding" and that it was "sufficient to find on the balance of probabilities that he [drove] his vehicle in the manner observed by Mr Papageorgiou".
7. At the commencement of oral submissions the primary judge stated that there was "no credit issue in this matter" but that it was otherwise a difficult matter to resolve. Consistent with that approach, neither Senior Counsel for the plaintiff nor Counsel for the Nominal Defendant made any oral submission adverse to the credibility of Mr Bradley.
8. However, in his submissions Counsel for Mr Bradley sought to persuade the primary judge that a finding that his client was responsible for the accident could only be made if it was found that Mr Bradley was not a witness of truth. Thus, in his written submissions Counsel for Mr Bradley contended: "Given Mr Papageorgiou's description of the accident it is highly improbable that the first defendant could have been involved and would not have seen the plaintiff's vehicle within a metre of his vehicle or have heard the collision which Mr Papageorgiou described as a loud bang. The first defendant was not challenged about this fact. Indeed it was put to him in cross examination by counsel for the second defendant as a positive proposition that he would have known if he had been so closely associated with a vehicle involved in the accident. It is submitted that it was inherently unlikely and glaringly improbable that the first defendant would have been involved in the accident described by Mr Papageorgiou without knowing of his involvement."
9. In his oral submissions Counsel for Mr Bradley repeated this point several times: "… your Honour, from the description of the accident's occurrence provided by Mr Papageorgiou, the less than one metre evidence which your Honour will recall, it makes sense that if that had occurred and the first defendant had been involved in the offending vehicle, he would have seen the Volvo. His Honour: Well it would have been behind him … [Counsel for Mr Bradley]: Initially in front of him. He would have cut across its path to such a degree as to, without the Volvo taking evasive action, would have caused a collision. He would have seen the Volvo. His clear evidence is that he didn't, and your Honour would have to reject that evidence in order to find against the first defendant. He would also have heard the collision. The evidence of Mr Papageorgiou was that there was a very loud bang, and the evidence of [Mr Bradley] was that he heard no such collision. Your Honour would also have to reject that evidence to find against [Mr Bradley]. And may I submit generally in relation to [Mr Bradley] he presented as a credible, reliable witness. … So there's no credibility issues that [arise], unless your Honour rejects the first defendant. In other words, in order to find against the first defendant, your Honour needs to, with respect, make adverse credibility findings against the first defendant. It's not simply a question of being mistaken, with respect your Honour, it's a question of finding, with respect, that he went to the police station and he lied about what occurred and what he observed, because there is no way that he could have been involved in this accident in the manner described by Mr Papageorgiou without his knowing about it. And that was put positively by my learned friend to the witness and he agreed with that proposition." (emphasis added)

The primary judge's judgment

1. The primary judge noted that part of Mr Papageorgiou's evidence in which he described the circumstances of the accident and found that it involved negligence on the part of the driver of the vehicle who accelerated across the path of Ms Matloob's car. The primary judge then identified the relevant issue in the terms noted in [27] above. His Honour summarised the evidence of Mr Papageorgiou concerning his identification of Mr Bradley's vehicle, noting the discrepancies in his evidence concerning the colour of the vehicle, the existence of the grille on the rear window, and the concession given by Mr Papageorgiou noted at [45] and his different answer in re-examination noted at [46]. His Honour summarised Mr Bradley's evidence, including the route he took to arrive at work at 6.45am as well as the answers to the questions concerning whether he had made enquiries as to whether there was any similar Ford vehicle used by anybody else in the area, and his evidence to the effect that he believed he would have seen another vehicle coming as close as Mr Papageorgiou said it was.
2. His Honour also noted the evidence concerning the markings made on the Google map by Mr Papageorgiou, but also observed "that there was no evidence that the un-named road (identified by Mr Papageorgiou) existed as at 18 June 2009".
3. Under the heading "Conclusion" his Honour recorded the finding that the driver of the Ford sedan was negligent and his finding on the balance of probabilities that it was Mr Bradley who was driving it. His Honour recorded his acceptance of Mr Papageorgiou's evidence.
4. In relation to the inconsistencies in Mr Papageorgiou's evidence, his Honour found as follows: 34. The colour of the sedan therefore varies greatly in the tan spectrum, but I am not convinced that the variation is sufficient to reach a conclusion that it was a different vehicle to that of the First Defendant. 35. Mr Papageorgiou also gave evidence that the Ford sedan he saw making the right hand turn had a plastic sun grille across the back window. Mr Bradley's sedan never had such a grille and I accept his evidence on this point. 36. However, what Mr Papageorgiou observed, unexpectedly at the intersection occurred in the drama of the moment and in such a moment details can be added or substituted or only vaguely observed which I think has occurred in the observation by Mr Papageorgiou of the colour of the sedan and the presence of a rear sun grille. 37. I therefore find, on the balance of probabilities, that the sedan observed by Mr Papageorgiou cutting in front of the Plaintiff's Volvo at about 7am on 18 June 2009 in the intersection of Wallgrove Road and Old Wallgrove Road, the details of which I have set out earlier, was owned and driven by the First Defendant. The failure of the First Defendant to make the right hand turn across the path of the Volvo with safety was negligent."
5. It can be seen that in [35] his Honour records his acceptance of one aspect of Mr Bradley's evidence, namely that his vehicle never had a grille across the back window. Otherwise, and even though his Honour set out aspects of Mr Bradley's evidence in the judgment, his Honour did not record any findings concerning whether any other aspect of Mr Bradley's evidence was accepted or rejected. Further, his Honour did not expressly address the submission made on behalf of Counsel for Mr Bradley set out at [57] to [58].

Scope of the appeal

1. Mr Bradley's grounds of appeal contended that his Honour erred in finding that he was the driver of the at fault vehicle and erred in accepting Mr Papageorgiou's evidence as to the identity of the vehicle at fault. They also contend that his Honour failed to give adequate reasons for the finding that he was the driver of the vehicle at fault.
2. In his written and oral submissions, Counsel for Mr Bradley, Mr Wilson contended that the finding that his client was driving the vehicle should be set aside and instead this Court should hold the Nominal Defendant responsible for Ms Matloob's claim. He submitted that this Court should find that the identity of the vehicle said to be at fault "cannot be established" (Motor Accidents Compensation Act 1999 (NSW) ("MAC Act"); s 34(1). In the alternative he sought a retrial.
3. Mr Wilson contended that, having regard to what was said to be various inconsistences in Mr Papageorgiou's evidence, his evidence as to the identity of the vehicle at fault was inherently unreliable and the primary judge erred in accepting it. In particular it was submitted that, given that his Honour accepted that Mr Bradley's vehicle was never fitted with a grille, it was not open to the primary judge to accept Mr Papageorgiou's evidence identifying his vehicle as the vehicle at fault as it was said to be an "integral part of the description". Implicit in his submissions was that the incontrovertible fact that Mr Bradley's vehicle did not have a grill was a matter that would warrant this Court rejecting the primary judge's acceptance of the reliability of Mr Papageorgiou's evidence, notwithstanding the advantage his Honour enjoyed in hearing and observing that evidence being given (Fox v Percy [2003] HCA 22; 214 CLR 118).
4. Otherwise Mr Wilson contended that the primary judge's reasoning in relation to Mr Papageorgiou's evidence of the colour of the vehicle and the presence of the grill was inadequate and unconvincing. He also contended that his Honour should have but did not address the other matters said to undermine Mr Papageorgiou's evidence, namely the differences between Mr Papageorgiou's evidence as to the timing of the incident compared with Mr Bradley's evidence as to when he traversed the intersection, as well as the differences in their evidence as to whether the at fault vehicle had its headlights on and the location of the car park at which Mr Bradley parked his vehicle compared with the map that was annotated by Mr Papageorgiou (see [47] to [48]).
5. It was further submitted by Mr Wilson that it was "unlikely and highly improbable" that Mr Bradley could have been involved in the accident in the manner described by Mr Papageorgiou without having seen Ms Matloob's Volvo or heard its impact with the stationary truck. Mr Wilson contended that as it was "never suggested to [Mr Bradley], nor was it found, that his evidence was untruthful … it was not open to the primary judge to find that [Mr Bradley] was the driver of the vehicle at fault".
6. Senior Counsel for the Nominal Defendant, Mr Rewell SC, submitted that the circumstances in which Mr Papageorgiou identified Mr Bradley's vehicle on the morning of the accident suggest that the possibility that he was mistaken was "exceedingly slight". In particular he pointed to Mr Papageorgiou's clear view of the accident, his evidence that nothing impeded his view of the at fault vehicle as it moved down Old Wallgrove road including any other cars, his evidence that he did not take his eye off the vehicle as it turned in the factory complex and his actions in returning ten minutes later to identify the very same vehicle. Mr Rewell SC referred to the fact that the model of Ford Sedan in reasonably good condition belonging to Mr Bradley that was recognised by Mr Papageorgiou was unlikely to be commonly found and noted that Mr Papageorgiou said he drove around the carpark and did not find any similar vehicle. Further aspects of Mr Rewell SC's oral submissions are noted below.
7. Senior Counsel for Ms Matloob, Mr Mooney SC, sought to uphold his Honour's judgment attributing fault to Mr Bradley. He contended that Mr Papageorgiou's evidence was "convincing" and Mr Bradley's was "unreliable and unsatisfactory". As I understand the position, other than a possible different outcome in relation to part of the costs of the proceedings, Ms Matloob's position is not affected whether she obtains judgment against the Nominal Defendant or Mr Bradley.

Determination

1. Considered in isolation I do not consider that the various asserted inconsistences in the evidence of Mr Papageorgiou as to the identification of Mr Bradley's vehicle warrant a conclusion that his identification of that vehicle was of itself unreliable and should have been rejected by the primary judge. I have already discussed the supposed inconsistency in relation to his evidence concerning the location of the street that the at fault vehicle turned down above (see [47] to [49]). I do not accept that there was any real difference in terms of the time at which the vehicle(s) moved through the intersection given that Mr Papageorgiou said it occurred it around "about 6.50am" and Mr Bradley gave an approximate time of "6.45". Any differences in relation to whether the vehicle had its headlights turned on do not advance the matter because, on the approach taken by the Nominal Defendant and Ms Matloob before the primary judge, they only beg the question as to which of Mr Papageorgiou or Mr Bradley was mistaken in their recollection.
2. Mr Papageorgiou's description of the colour of the vehicle he identified is capable of being "tannish" and "tannish brown" and his acceptance in the witness box that Mr Bradley's cream coloured vehicle was tan simply reveals that he had his own conception of what that colour is, to the extent that colour descriptions are a matter of any significance to him. The primary judge had the advantage of hearing and observing Mr Papageorgiou give his explanation for his colour descriptions.
3. By far the most significant matter affecting Mr Papageorgiou's reliability was his repeated reference to the black grille on the exterior of the car window. If the only evidence of Mr Papageorgiou's identification of Mr Bradley's vehicle was that given in the witness box then the discrepancy in relation to the grille would probably be fatal to the case against Mr Bradley. However the critical aspect of Mr Papageorgiou's evidence lay not in his statements in the witness box identifying Mr Bradley's vehicle as the vehicle at fault, but in his actions on the morning of the accident in identifying it. He saw the at fault vehicle at the scene. He followed that vehicle down the road in the direction of the at fault vehicle. He saw that vehicle pull into the car park that Mr Bradley used to park his vehicle. Shortly afterwards he returned and identified Mr Bradley's vehicle. As Mr Rewell SC contended in oral submissions in doing so he just happened to identify a vehicle that had traversed the intersection by taking the same route as the at fault vehicle and at around the same time. Although no evidence is available to measure the probabilities that those events could be coincidental, they are matters that support the veracity of his identification or, at the very least, narrow the scope for any possible mistake on the part of Mr Papageorgiou in identifying the at fault vehicle to a mistake that occurred in the immediate minutes after the accident.
4. However Mr Papageorgiou's evidence is not to be considered in isolation. There remains the evidence of Mr Bradley. Before his Honour, Counsel for the Nominal Defendant and Ms Matloob embraced the primary judge's suggestion that all that was required was an assessment of the reliability of Mr Papageorgiou's evidence and Mr Bradley's evidence. I have set out the submission that was made on behalf of Mr Bradley above at [57] to [58]. In effect he contended that the case resolved to a conflict between the reliability of Mr Papageorgiou's evidence on the one hand and the honesty of Mr Bradley's evidence on the other. It was prima facie a powerful submission. It raised a threshold issue of importance to the determination of the matter, namely was it likely that the at fault vehicle was at least aware of an incident with Ms Matloob's vehicle, if not her accident, at the time it occurred? If so, a conclusion that Mr Bradley's vehicle was involved meant that he lied to the police on the day of the accident and perjured himself. However neither the Nominal Defendant nor Ms Matloob suggested or submitted that he did.
5. The primary judge did not address the submission made on behalf of Mr Bradley. A consideration of that submission would have required his Honour to address the likelihood that the driver of the at fault vehicle was at the very least aware that they had narrowly avoided a collision with Ms Matloob's vehicle (and possibly that they had caused an accident). No such finding was made. The content of the obligation on a judicial officer to give reasons varies with the particular circumstances of each case (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 442 per Meagher JA; "Beale"). In the present context it suffices to note that the primary judge was obliged to address the "central controversies put up for resolution by the parties" or "engage with, or grapple or wrestle with, the cases presented by each party" (Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2] per Allsop P and at [116] per Campbell JA respectively). By failing to address the submission referred to at [57] to [58] his Honour failed to satisfy that obligation. The outcome of the case potentially turned upon it being addressed and resolved. In the end result Mr Bradley is left to speculate about why he lost. Did the primary judge conclude that he may not have noticed Ms Matloob's vehicle and, if so why, given that there was no challenge to that part of Mr Papageorgiou's evidence in which he described the accident? Otherwise did the primary judge reject Mr Bradley's evidence as unreliable or dishonestly given?
6. Subject to the point considered next, a conclusion that the primary judge did not address this threshold issue and the related question of the weight to be attached to Mr Bradley's denial of any knowledge of an incident involving Ms Matloob's vehicle is sufficient to conclude that there was a miscarriage of justice such that the preconditions to a new trial are made out (UCPR 51.53(1)(d); Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 at [56]). Given the description of the accident proffered by Mr Papageorgiou there was at the very least a reasonable possibility that, had the submission been addressed, then the primary judge would have concluded that the at fault driver was aware that he almost collided with Ms Matloob's vehicle and thus it was necessary to address Mr Bradley's denials before concluding that he was responsible for the accident (cf Tory v Megna [2007] NSWCA 13 at [41] per Spigelman CJ).
7. Nevertheless, the existence of an appellable error arising from inadequate reasons does not necessarily mean that a new trial must be ordered (Beale at 444 per Meagher JA). Thus, if this Court finds that the only conclusion open on the evidence available at trial was the conclusion of the primary judge then a new trial need not be ordered (Beale id). Equally if this Court concludes that on the evidence available the primary judgment could not be sustained then it should give effect to that conclusion (Jovic v Lamont [2007] NSWCA 47 at [66] per Campbell JA). Such an inquiry is to be conducted on the basis that, subject to narrowly confined exceptions including for example the taking of new points of law on appeal (Coulton v Holcombe [1986] HCA 33; 162 CLR 1, 7), the parties are bound by the way they conducted the trial (Saffron v Societe Miniere Cafrika [1958] HCA 50; 100 CLR 231 at 240; Coulton id) although that inquiry is not confined to final addresses but extends to the pleadings, particulars and, of significance to this case, the "course of the reception of evidence" (Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports 81-636 at [43] per Heydon JA). Thus, for example, if the only path to victory for a litigant is to establish dishonesty on the part of a defendant, either as an element of a cause of action or in the evidence they gave, then they must endure defeat if dishonesty was not alleged much less proved at first instance.
8. Once Mr Bradley gave evidence denying any knowledge of the accident, was the only path to establishing liability on his part to allege and demonstrate that he lied to the police and in his evidence before the primary judge? I have set out above the evidence given by Mr Papageorgiou. At the core of his evidence is his description of the accident in which the at fault driver edged across the intersection before suddenly accelerating across the path of Ms Matloob's vehicle and narrowly avoiding a collision. Given the lapse in time referred to in [41] and the location at which Ms Matloob collided with the stationary truck, I am not persuaded that the at fault driver would have necessarily heard or seen an accident, although it is likely they would have. However, if Mr Papageorgiou's evidence in that respect is reliable then in my view it inexorably follows that the at fault driver must have been aware that they had narrowly avoided a collision as Ms Matloob's vehicle swerved. The driver's conduct as described by Mr Papageorgiou was unusual. Mr Papageorgiou was consistent in stating that the vehicles were very close. They must have been for Ms Matloob to swerve and lose control in the manner she did especially as she was only travelling at 60 kilometres per hour at the time of the incident. Mr Rewell SC submitted that if the driver was inattentive in edging into the intersection then they may not have noticed Ms Matloob's vehicle even though it almost collided with them. I do not agree. There is a difference between a driver being inattentive prior to entering an intersection and their not noticing a car that almost collides with them as a result.
9. The only means of avoiding a conclusion that the at fault driver was aware of an incident involving another vehicle as they moved through the intersection of Wallgrove Road and Old Wallgrove Road is to doubt the reliability of Mr Papageorgiou's description of the accident. Thus, in oral argument, Mr Rewell SC submitted that the at fault driver may not have been aware of Ms Matloob's vehicle because Mr Papageorgiou's evidence that "they missed each other by a metre … may have been an underestimate". However the vehicles still have to be close enough to demonstrate negligence on the part of the other driver such as to cause Ms Matloob to dangerously swerve when travelling at 60 km per hour. The difficulty is that the more the reliability of Mr Papageorgiou's description of the accident is doubted then the more the suggestion of fault on the part of the driver recedes from view.
10. In my view, there is an inherent tension, and in fact a necessary inconsistency, in considering the possibility that Mr Papageorgiou was so mistaken in his recollection of how close the vehicles came to colliding that it can accommodate the reasonable possibility that the at fault driver did not notice Ms Matloob's vehicle on the one hand and relying on Mr Papageorgiou's description of the accident to find negligence on the part of the at fault driver on the other. Either the at fault vehicle was not liable in negligence in the manner stated by Mr Papageorgiou and found by the primary judge, or the driver was liable and knew that their vehicle was involved in an incident at the intersection. The negligence of the at fault driver was not in issue on the appeal. To the contrary the premise of the hearing and of the appeal was that Mr Papageorgiou's description of the accident was reliable. I do not consider that this Court can question that premise as part of a chain of reasoning that leads to a conclusion that the at fault vehicle did not notice the near miss with Ms Matloob's vehicle.
11. It follows that a conclusion that Mr Bradley was the driver of the at fault vehicle necessarily meant that he lied to the police in his interview later in the morning on 18 June 2009 when he denied noticing a northbound vehicle taking evasive action (see [39]). It also meant that he lied in his evidence before the primary judge in denying any recollection of a vehicle in "close proximity" (see [40]). Yet no such contention was ever put to him in his evidence or any submission reflecting that made to the primary judge. His Honour made no finding to that effect. To the contrary to the extent referred to Mr Bradley's evidence his Honour accepted it (see [62]). There is no scope for this Court to consider a case against Mr Bradley which involves a finding that he lied to the police and in his evidence before the primary judge. Equally the matter should not be remitted to allow the Nominal Defendant or Ms Matloob to run a case that Mr Bradley lied when they did not run any such case previously.
12. It follows that the finding that Mr Bradley was the driver of the vehicle that caused the accident should be set aside. In the absence of such a finding the only permissible conclusion is that the identity of the driver at fault could not be established.
13. Accordingly I would allow the appeal. The quantum of Ms Matloob's damages were approved by the District Court on 8 August 2014 as is apparent from the judgment the primary judge entered against Mr Bradley on 9 October 2014. It is appropriate that the judgment entered against Mr Bradley be set aside and, instead, a judgment in like terms be substituted against the Nominal Defendant. No party suggested to the contrary. Mr Wilson asked that the Court reserve on the question of costs. The orders I propose give the parties the opportunity to either agree to variations to the proposed orders or to submit the orders for which they contend with written submissions addressing areas of controversy. Unless it is otherwise necessary, the Court will deal any dispute on the papers.
14. I propose the following orders: 1. Appeal allowed; 2. Set aside the orders made by the District Court on 9 October 2014 in matter no 158029 of 2012. 3. In lieu of those orders, judgment for the plaintiff against the second defendant in the sum approved by the Court on 8 August 2014 being the sum of $1,400,000. 4. Within 14 days parties to file any agreed or otherwise competing short minutes of order together with any submissions in respect of the orders that are not agreed, such submissions not to exceed five pages.

Endnotes

1. Browne v Dunne (1893) 6 R 67.
2. Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 (at 16) per Hunt J.
3. Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498 (at [64]) per Allsop P, Giles JA and Tobias AJA, referring to Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [69] - [73] and [75] per Heydon, Crennan and Bell JJ.
4. RCR Tomlinson Ltd v Russell [2015] WASCA 154 (at [70]) per Buss, Murphy JJA and Beech J.
5. Mr Bradley also effectively denied any involvement in the accident when cross-examined by counsel for the plaintiff. See Beech-Jones J (at [51] to [52]).
6. Uniform Civil Procedure Rules 2005 (NSW) 51.53. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2015