Assessment of the credibility and reliability of testimony
131At the outset of my evaluation of the credibility and reliability of the evidence of the respective witnesses, I record my impression that I considered each witness did their best to give their evidence according to what they believed they had observed in the events in question. In my view, none of the witnesses were shown to have consciously given evidence which was either incorrect or untruthful.
132Accordingly, the analysis of their evidence is concerned with the reliability of that evidence rather than credibility as such. In that context, it is not in dispute, and it must be recognised, that the events of the collision occurred very quickly. In such circumstances, generally, scope arises for witnesses to invoke a process of reconstruction in giving their evidence so that, although the matters that they related in their evidence were described by them, as they had perceived the events to have occurred, this does not necessarily mean that all such reconstructed accounts are likely to in fact be correct. In this case, the evidence had to be assessed with that factor in mind.
133A convenient starting point for an evaluation of the reliability of testimony of the eyewitnesses is to consider the evidence of the independent witnesses, who are not connected with either party, namely, Ms Chandler and Mr Miller.
Ms Chandler
134Ms Chandler conceded that her memory of the events of the incident was hazy, not good and poor. That is a relevant consideration that I must take into account when assessing the reliability of her evidence generally, and especially that part of her evidence which was to the effect that the plaintiff was running at the time Ms Chandler saw her crossing the roadway.
135Whilst ordinarily, evidence of that kind does not require corroboration for its acceptance, since Ms Chandler acknowledged that her memory of the events was hazy and not good, and that her memory of the events was much better immediately after the incident and at the time when she gave her statement to the police, I consider that in the absence of the tender of the whole of the content of Ms Chandler's contemporaneous statement, I should exercise considerable caution before accepting Ms Chandler's evidence on the question of whether or not the plaintiff ran as she was crossing the road.
136I consider that such an approach is justified in this instance because Ms Chandler conceded that her use of the qualifying expressions " I believe " and " I think " when giving her evidence was a reflection of the fact that her memory of the events is now poor, as she conceded.
137Ms Chandler acknowledged that at some point the plaintiff hesitated as she crossed the road. In my view that concession is a significant one, and in my view it should preclude a finding that the plaintiff simply ran across the road. This is because in Ms Chandler's evidence, the point on the roadway at which there was said to be some hesitation on the part of the plaintiff in crossing was not identified in relation to any landmark of the journey across the roadway, and especially since Ms Chandler had agreed that her first observation was of both girls walking across the road, followed by running as the car ahead turned left.
138For the foregoing reasons, I take the view that there was considerable room for doubt as to the reliability of the significantly qualified evidence of Ms Chandler on what she believed or thought she saw in the events of the collision. I have concluded that for those reasons Ms Chandler's evidence should not form a basis for displacing the evidence of the plaintiff and Miss Devine concerning whether or not they had run across the road at the time the collision occurred.
139I consider that view is justified by the fact that the complete content of Ms Chandler's more contemporaneous statement to the police had not been tendered and where, given the limited recollections of Ms Chandler at trial, that document could well have served to provide a means of assessing the reliability of Ms Chandler's evidence as a whole.
140In any event Ms Chandler's evidence did not throw any light upon the crucial question of whether or not the defendant had a green left turn arrow, or as to the colour and state of display of the pedestrian lights that faced the plaintiff as she crossed the road.
Mr Miller
141In relation to the evidence of Mr Miller, I have already observed that the horrendous events of the accident had a very distressing effect upon him. It was plain that those effects continued to have a significant impact upon him, including on his composure at the trial. I consider that fact, together with what I consider to have been Mr Miller's limited opportunity to make factual observations of the events because of his primary focus on the slowing down manoeuvre he was engaged in as he approached the stationary vehicle in front of his bus, has led Mr Miller to relate an unreliable reconstruction of the events of the accident when recounting his evidence.
142For this reason, I consider that Mr Miller's reconstructed evidence of the events of the accident provides an unsound and unreliable basis for preferring his evidence to the contrary accounts given by the plaintiff and Miss Devine on critical matters. In recording that view I do not intend that these reasons should in any way be read as a personal criticism of Mr Miller, whom I am satisfied did his best to provide an account of events as best he could recall and as he perceived them.
143Nevertheless, I consider that Mr Miller's recall of events has been impaired and distorted by the operation of a combination of factors that have led to him giving a distorted factual account of the events.
144Those factors were the traumatic circumstances he experienced when he went to the assistance of the plaintiff; his subsequent need to cope with those events by trying not to think about them and to put them out of his mind over the years since the accident, and a conflation of events that has resulted from his attempts to bring the events of the accident to mind when giving his evidence.
145In my view this process has led to him providing a distorted and an inaccurate, albeit honestly, reconstructed account of events. I am satisfied that this is so because of the following matters.
146First, in the lead-up to the accident, I consider that Mr Miller would have been primarily concerned with bringing his 12 tonne bus to a halt at a point half a metre behind the stationary vehicle in front of him in Melrose Avenue. That was an action that would most likely have occupied his primary attention in order to avoid placing his bus into collision with the vehicle in front of him because such a small distance of separation of vehicles was an unusual circumstance for stationary traffic, and carried with it a pressing need to ensure that in such circumstances, no collision would occur between the front of the bus and the stationary vehicle in front. In those events I consider that it was unlikely that Mr Miller would have had the opportunity to accurately observe, let alone accurately recall without reconstruction, all of the elements of the events as he sought to do concerning the collision, which at best, must have been peripheral to his attention at the time.
147Secondly, I consider that in his reconstruction of events, Mr Miller has conflated those events. For example, in his approach to the intersection he would have had to have driven past the group of other school girls who had already crossed the intersection and who were some distance ahead of the plaintiff and Miss Devine at the time when his bus came to a halt. He claimed to have seen that group of girls when they were " at the end " of their crossing, namely that the last one of them had completed her crossing when he was bringing his bus to a halt. He stated that he had then remained stationary at the intersection for about 10 seconds at the time the collision occurred, which, on the defendant's case was at a time when that group of girls was already 100m to 200m away from the crossing. It is most unlikely that these girls would have walked that distance in 10 seconds, which casts significant doubt upon the accuracy and reliability of Mr Miller's observations generally and points to a reconstructed and conflated account of events.
148Thirdly, Mr Miller stated that at the time of the accident, he was looking straight ahead: T176. That was probably a correct account because he was waiting at the lights for a break in the traffic in order to make a right turn into Port Hacking Road. In these circumstances, I consider that his evidence in which he described seeing the defendant's vehicle take off from a position to his left, which necessarily meant first that it was either stationary or travelling slowly before gaining speed, and secondly looking to the left of his bus, was an unlikely observation on his part, and probably a reconstructed view, and therefore represents an unreliable account. I doubt that account is a correct description of what Mr Miller would have been able to see as he looked to the front, recognising he was responsible for safely managing a prospective turn of a large vehicle. I consider his attention would have been primarily focussed on that task, and not on the other details which he related in his evidence.
149Fourthly, even after putting aside the question of whether Mr Miller was able to observe the state of the pedestrian traffic control lights despite the presence of a metal cowling structure around those lights, a matter that is difficult to determine on the state of the evidence, it seems to me unlikely that Mr Miller would have been able to see whether those lights were flashing red and then showing solid red at the time the plaintiff was crossing the roadway, given his need to make a right turn when the lights and traffic permitted him to do so. I consider it more likely that he was looking to the front at the lights which controlled his movements in the traffic.
150Fifthly, I consider that Mr Miller's concession to the effect that he was not looking in the direction of the defendant's vehicle at a time when an observation could have been made as to whether it was displaying brake lights, together with his evidence that he had beforehand been looking straight ahead, meant that at best, what Mr Miller would have been able to see was the movement of the defendant's vehicle to his left, which would have caused him to look up to the left and away from the view straight ahead. In those circumstances, I consider that it is improbable that Mr Miller would at that time, also have taken a view of the state of the pedestrian lights to his left and the pedestrians as he watched the defendant's vehicle proceed forward and into the horrifying collision with the plaintiff who was crossing the road at that time.
151Sixthly, the process of reconstruction was plain from variations within Mr Miller's evidence in which he first stated that the plaintiff was probably jogging or running, and then he conceded that she may have been walking. In my view, Mr Miller's use of the expression " probably a jog or a run " indicates that his evidence was a reconstructed account. That view is confirmed by Mr Miller's concession that the plaintiff may have been walking. This suggests that, although he might have been in a position to see the plaintiff, he was not confident of his description of her as jogging or running because it was a reconstructed view rather than an actual observation.
152Seventhly, after giving due consideration to Mr Miller's description of the events that occurred after the collision, I am persuaded that his account of events was an unlikely and conflated reconstructed account, rather than being a simple factual recounting of actual observations made by him at the time.
153I have reached that conclusion on an analysis of Mr Miller's account of events that he described as having occurred after seeing the collision, and after seeing the defendant's vehicle drag the plaintiff several metres. In those events he would have had to, in sequence, ensure that his bus was safely secured into a stationary position with the hand brake on, alight from it, proceed on foot to the position where the collision occurred, place himself in a barrier position in front of the defendant's vehicle as he stated, at a time when the defendant was attempting to continue to drive her vehicle forward, and then yell at her in an attempt to dissuade her from continuing on that course, possibly by banging on her vehicle with his hand or hands.
154I consider that account to be an unlikely and conflated scenario. I consider that to be so given that the defendant's vehicle was observed by the investigating police officer to be some 20m from the intersection. Even after allowing for some movement of the vehicle forward a short distance in order to disengage the plaintiff from underneath it, it seems to me unlikely that Mr Miller would have managed to achieve all of these things in a very short space of time in circumstances where the defendant was still attempting to drive her vehicle forward with the plaintiff still underneath it.
155Instead, I consider that it was more likely that Mr Miller ran to the aid of the plaintiff and held her head and tended to her injuries in the manner he described, and then later tried to piece together what had happened, but in circumstances where his reconstruction was inaccurately coloured by the traumatic circumstances.
156For these reasons, although I consider that Mr Miller did his best to recount the events as he thought he had seen them, his account should not be taken to be fully reliable or accurate.
157The foregoing matters lead me to conclude that because the events happened very quickly, as was acknowledged by Mr Miller, even though he was in a good vantage point to take in the scene, Mr Miller was more concerned with looking straight ahead and waiting for the red light to change to green to permit his line of traffic to turn right. In those circumstances I consider it is unlikely that Mr Miller is correct when he said the plaintiff had crossed contrary to a red pedestrian traffic light.
158I now turn to the evaluation of the reliability of the evidence of the interested parties, and Miss Devine, who, whilst not a party, should be considered as having an interest of loyalty to her friend, the plaintiff. Of course that fact alone should not necessarily cause Miss Devine's evidence to be viewed with suspicion or discounted on account of being affected by partisan interests. I simply mention the loyalty question as a marker to remind myself that I should evaluate her evidence with due care on that account.
Miss Devine
159I was impressed by the care with which Miss Devine gave her evidence. I formed the view that I could generally rely upon her evidence for accuracy. In making that observation, I have had due regard to the fact that Miss Devine and the plaintiff were good friends, and that it was possible that either consciously or subconsciously, Miss Devine could have had an opportunity to tailor her evidence in order to assist the plaintiff to secure a beneficial outcome in the litigation.
160However, I discounted that factor because it was not seriously suggested on behalf of the defendant that this was so, and I saw no indication of that factor when I observed and read her evidence as a whole, and weighed it alongside all of the other evidence. There was no suggestion or indication that she had tailored her evidence in order to assist her friend, the plaintiff. There was nothing within her evidence that seemed to me to be incredible or glaringly improbable.
161Furthermore, I considered that where appropriate, Miss Devine made appropriate concessions when cross-examined, which indicated that she was not seeking to advocate a particular result favourable to the plaintiff. I believe that her evidence was balanced, careful, non-partisan, and I consider that I could confidently place reliance upon that evidence as being an accurate account of the events leading up to and surrounding the accident, especially on matters upon which the defendant's evidence was silent.
162Although it was arguable that Miss Devine could be partisan to the plaintiff's interests, it could equally be argued that she was also well placed to make observations on relevant matters because, at the time, like the plaintiff, she had an interest in safely crossing the road without incident or injury. Absent any suggestions of a lack of actual recollection, reconstruction or false testimony on her part, I saw no reason for not accepting Miss Devine's account of the events as being truthful, subject to a consideration of the other evidence as a whole in order to determine whether good reason existed for not accepting her evidence.
163The crucial elements within Miss Devine's evidence were that she (and therefore the plaintiff, since they were holding hands at the time) had commenced their crossing of Melrose Avenue at a time when there was a green " Walk " sign in their favour; she (and therefore the plaintiff) were within the confines of the marked pedestrian crossing, and had almost completed their crossing when the plaintiff was struck; the defendant's vehicle came from the left making a screeching noise and accelerating to the point of the collision; the defendant's vehicle continued to move until Miss Devine managed to get her to stop by attracting her attention by banging on the vehicle; and when the defendant emerged from her vehicle in a state of upset and gave an explanation that she thought that her vehicle had run over a box on the roadway.
164In the final analysis, those elements must be aligned with the defendant's account of the events in order to determine which account should be preferred as being more probably correct. At this stage of the analysis, it is sufficient to state that on the face of Miss Devine's evidence, there were no obvious matters that arose within her evidence that raised doubts as to the correctness or the reliability of her evidence, apart from the usual matters of analytical caution, to which I will refer in due course when I come to state my findings on the liability issues.
165Although the evidence tendered did not include any prior statement from Miss Devine in the form of a contemporaneous statement taken by investigating police, as there was no such statement, a matter that attracted criticisms by the defendant in final submissions, I did not consider that the absence of such a statement was a circumstance that should necessarily detract from the reliability of her evidence, which was the tenor of the contrasting view I took in relation to the reliability of the evidence of Ms Chandler because of Ms Chandler's concessions as to her poor memory of the matters in question.
166I took that view because, unlike the position disclosed within the evidence of Ms Chandler, there were no reasons inherent within Miss Devine's evidence concerning her recall of events that relevantly qualified her recollection, or caused me to doubt the accuracy of her memory of the events as she related them. As such, questions of a possible need for corroboration of her testimony therefore did not arise.
The plaintiff
167The plaintiff gave significant portions of her evidence whilst she was in a state of obvious upset. Despite this, she managed to appropriately respond to questions, and gave consistent answers during cross-examination. I considered that her evidence appeared to be limited to relatively short answers due to the apparent welling of emotions within her in reaction to having to relate matters that were clearly upsetting to her. I considered that she gave her evidence truthfully, in a spontaneous, genuine, unrehearsed and restrained manner.
168This was particularly evident on the issue of her observation as to the state of display of the flashing " Dont Walk " sign on the pedestrian control lights during the course of her crossing of the roadway. If she was minded to tailor her evidence, she could have easily and conveniently claimed an earlier recollection of a different kind, such as a green light consistent with Miss Devine's observations, which would have undoubtedly tended to advantage her case. I consider that the fact that she did not seek to do that must weigh heavily as a factor in her favour when weighing the credibility and reliability of her testimony. I did not discern any guile within the evidence of the plaintiff.
169Furthermore, I consider that she did not seek to exaggerate the significant deleterious physical and psychological effects that her injuries have had upon her life concerning her day-to-day wellbeing, and her plans for the future. In the circumstances, I felt comfortably able to rely upon the plaintiff's testimony as a whole. If anything turned on the plaintiff's demeanour, I thought her evidence on the effects of the accident upon her, was understated.
170A discrete issue emerged from the plaintiff's evidence as to the circumstances of her statement to the police on the question of whether, when that statement was written, she actually said that she had crossed the roadway contrary to the direction of a red pedestrian light at the intersection, notwithstanding that the statement in question had been signed by her in the presence of her mother and the police officer.
171In assessing the truthfulness and reliability of her evidence to the effect that she had not told the police officer she had crossed contrary to a red light, and had not detected or corrected this error when she had signed the statement in the police notebook, I have had regard to and have accepted her evidence concerning the circumstances of the questions that were asked of her at the police station. These followed closely together, and which could well have led to a misunderstanding in the police summary of what she was saying. I consider that this is what most likely occurred. In assessing the credibility and reliability of the plaintiff's evidence on this point. I have also had regard to the unchallenged medical and allied evidence and the factual histories upon which that evidence was founded.
172I also observe that the plaintiff's evidence as to the material inaccuracy of the summary or statement in the police notebook is supported by other inaccuracies in that summary. For example, paragraph 3, refers to the plaintiff and Miss Devine walking to the tenpin bowling centre for afternoon sport. That was an obviously incorrect factual matter which the plaintiff was unlikely to have said, given the evidence of the plaintiff at T67.10 which leads me to infer this was an incorrect detail Sgt Burrows had assumed. This has also led me to doubt the accuracy of the statement in the police notebook as I considered that it was most unlikely that the plaintiff would have made the erroneous statement that has been incorporated into her statement, as was summarised by Sgt Burrows.
173In assessing the evidentiary importance of the plaintiff's statement I have to bear in mind that Sgt Burrows explained that the statement was constructed as a combination of the plaintiff's words and his summary of them, including asking her leading questions. Sgt Burrows was unable to identify which portions of the plaintiff's narrative were recorded in response to either leading or open questions.
174It appears from the evidence of Sgt Burrows that at the time the plaintiff signed the statement prepared by him, she had read it over to herself rather than having it read to her by him. In this regard, Sgt Burrows stated that at the time he was not aware of any apparent difficulties the plaintiff may have had, for example, with concentration, or with emotional distress. He had no independent recollection of such matters. He was unaware at the time he gave his evidence as to whether there had been any discussion with the plaintiff's mother on the subject of the plaintiff's health or ability to concentrate.
175It is quite apparent from reading the plaintiff's police statement that the content was partly factual and partly analytical. I consider that the analysis portions would most probably have come from Sgt Burrows. For example, the expression " As I crossed the westbound lanes I was looking at the traffic for eastbound lanes in Melrose Avenue ". I find it extremely unlikely that the plaintiff have contributed the content of the expressions " westbound " and " eastbound " lanes. I consider this was as a result of Sgt Burrows' analysis, and constituted a summary of what he had understood the plaintiff to have been conveying. If the document had been written by the plaintiff, a different conclusion would arise. In fact Sgt Burrows acknowledged that there were several inclusions in the statement concerning various concepts that did not involve the plaintiff's actual words, but were instead a summary.
176The circumstances of the plaintiff making that statement were that her mother had determined that she wanted the matter of the outstanding statement over and done with, and the plaintiff's mother chose the timing to go to the police station for the statement to be made. That is a matter of some significance because at that time, as the medical evidence confirms, the plaintiff was still affected by concentration and related problems.
177In those circumstances, I find that these matters were more probably than not impacting upon the plaintiff at the time she gave her statement to the police. She stated that when she spoke to the police when giving her statement she was not in a very good emotional state. Although she did not seek to overly retreat to such an explanation based on those kinds of impairments, I consider that such factors cannot be ignored when assessing the likely truth of her explanation of not having read the police statement before signing it. The plaintiff stated that she could not recall signing some of the things that Sgt Burrows had written in the statement. In this regard, I saw no sound reason to doubt her evidence to that effect.
178In this context, the consequences of the plaintiff's acknowledged signature and initials on the statement in the police notebook does not necessarily require the same conclusion as for example, a contract case, where absent special circumstances being shown, a signature in a contractual document would ordinarily be held to be binding on the signing party: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165, at [42] - [45], and similar cases.
179Accordingly, I consider that the plaintiff is not necessarily bound to a factual account by her signature in this instance, and the consideration of the surrounding circumstances are also relevant to an evaluation of the issue of the likely accuracy of the recorded summary or statement within the police notebook, notwithstanding that it was signed by her as being apparently correct at the time.
Mrs Farrelly
180A further factor to be weighed in determining the truthfulness of the plaintiff's evidence on the matter of the reliability of the content of the plaintiff's statement to the police is the evidence of the plaintiff's mother. In my view there was nothing that emerged from the evidence of Mrs Farrelly that led me to doubt the plaintiff's version on the circumstances in which the plaintiff signed the statement in her presence.
181Insofar as Mrs Farrelly said that she was present but not paying much attention to the interview at the time, and whilst such a position was perhaps unusual in circumstances where a parent accompanied a minor to a police station for the purposes of a police interview, I did not consider the account of those events as related by Mrs Farrelly to be inherently improbable so as to require a rejection of that explanation.
182This is so because the plaintiff was not present at the police station under duress, or a suspicion of lawbreaking, or as a person of interest for the purposes of possible charges that may have attracted the sanctions of the criminal law. In those circumstances, I accept that both the plaintiff and her mother could well have understood, as was claimed, that their presence at the police station for the purposes of the interview was regarded by them as being something of a formal requirement in order to close-off the police investigation file on the matter. This is consistent with the evidence of Mrs Farrelly which was to the effect that she simply wanted to get the outstanding interview out of the way, which was a matter that was clearly in the best interests of her daughter, and understandable in the circumstances.
183Mrs Farrelly stated that in the initial few weeks after the injury, the plaintiff's emotional state was up and down. She assumed this was because of the painkilling medication she was taking. In her evidence in chief, Mrs Farrelly stated that at the time the plaintiff attended the police station to give her statement the plaintiff's situation was as follows:
"Q. Can you tell me in what physical state she was when she attended there?
A. Her wounds were still healing, it was six weeks for the stitches in her head to come out, which is just, which is normal time for stitches. She, we had her on a lot of medication, lots of Panadol, she was on small doses of OxyContin as well, for pain.
Q. What was her emotional state like?
A. She was a basket case.
Q. And you?
A. Just trying to hold it altogether for her."
184As to the actual events of the interview, Mrs Farrelly was not able to throw much light upon them. Her evidence in chief on that matter was in the following terms:
"Q. So, you do remember that there was an interview at the police station with a policeman?
A. Yes.
Q. What, if anything, do you now remember about what was said?
A. Unfortunately not a great deal, I'm sorry.
Q. What, if anything, do you now remember about what was done, and I'm particularly interested in a showing or reading of a notebook?
A. Yet again, I really can't say. I, I just simply don't remember."
185In cross-examination, Mrs Farrelly's evidence on matters concerning the police interview was as follows:
"Q. I want to ask you some questions about the interview with the police on 5 December 2007. If you remember, how did that interview come about, why did you go down to the police station?
A. Well because we were asked to do the interview, I knew that at some stage Nicki had to do the statement. Constable Burrows suggested to us that - he rang me whilst she was in hospital and he suggested that we come, you know, a few weeks after, "Let her calm down and, you know, deal with some of her injuries before you come in and do your statement. Okay then". So I rang - did ring? I don't remember who rang who but I went to the police station with Nicki and we did the statement.
Q. So it was at a time of your choosing, as it were, you chose when to go down to the station when you thought she was well enough?
A. I wanted to get it done as quick as I could so that way it was out of the way and everything was fresh.
Q. But you waited some weeks after she was released from hospital, didn't you?
A. Yes.
Q. Because in the early stages she would have been in no condition to give a version of the events immediately following her release from hospital?
A. Yes.
Q. So you went down there one late afternoon with Nicki-Lea to the police station?
A. Yes.
Q. Do you remember sitting in a room with she and Constable Burrows?
A. Yes.
Q. Do you remember the officer asking her questions?
A. Yes, I wasn't paying a lot of attention to them.
Q. Why not?
A. I didn't - I just wasn't.
Q. But you knew this was an important event, didn't you?
A. Yes.
Q. It was important to find out how the accident occurred, wasn't it?
LIDDEN: I object to that, important to who?
RYAN
Q. It was important to you personally, wasn't it?
A. I'd already know what happened in the accident, so being a month afterwards I was more in a frame of mind of we were going through dressing changes every two days, I worked as much as I possibly could to keep the funds coming into the house.
Q. You'd discussed with your daughter what happened in the accident before you went to the police, didn't you?
A. She told me what happened, yes. Well she remembers it all.
Q. You heard her telling the police officer what happened in the accident, didn't you?
A. Well, yeah, I was sitting next to her I could hear her talking, I knew he was talking but I really can't say I was paying too much attention what was actually verbally said.
Q. Did you hear anything in that interview that differed from your understanding of how the accident happened?
A. I really can't say. I can't say if I heard anything different. What she tells me has been consistent right through with everybody.
Q. Consistent right through including consistent with what you heard on the day the police interviewed her?
A. Yeah.
...
Q. Did the police ask her to go round for an interview?
A. Yes.
Q. All right. Was that done through you?
A. Yes.
Q. Did the police say to you, words to the effect, "When you think she is ready, bring her down"?
A. Yes.
Q. When was that request made of you by the police in relation to the accident, was it at a time when Nicki was in hospital?
A. Yes.
Q. Okay. And then so you waited until such time you thought she was in a position to give an account of the accident?
A. Yes.
Q. Now when the interview concluded did you see the officer's notebook?
A. Yes.
Q. Did you read what was written in there?
A. No.
Q. Did you see your daughter sign it?
A. No, I can't say that I did.
Q. But you were present in the room for the whole of the interview, weren't you?
A. Yes.
Q. There was no stage of this process when the officer was alone with your daughter, was there?
A. No.
Q. And at all times you heard the exchange that took place between the officer and your daughter?
A. I knew that they were talking, I don't know what they were saying, I really was not paying it any attention.
Q. Yes. So if I were to put to you matters that were in the statement, are you in a position to say whether that's what you heard on the day?
A. No.
Q. No. All right. Moving on to a different topic now, Ms Farrelly, or before I do, have you seen your daughter's statement to the police?
A. No.
Q. Never?
A. I've not seen it, no. I've not personally read it, no."
186I considered that Mrs Farrelly's evidence on the issues relating to her recollection of the circumstances surrounding the taking of the police statement was sincere and truthful. Although I recognise that as the plaintiff's mother, she might have had the opportunity to tailor her evidence to favour the plaintiff's case, I saw no indication of this, and the defendant did not suggest that this was so on any material issue. I consider that Mrs Farrelly gave reliable evidence in respect of all of the matters that were canvassed in her evidence on the issues of both the circumstances in which the police statement was obtained from the plaintiff, and on the damages issues.
Miss Farrelly
187I consider that the plaintiff's sister, Sarah Farrelly, also gave truthful and reliable evidence. Her evidence concerned the damages issues, and it is therefore not necessary to refer to the detail of her evidence for the purpose of stating my credit findings. In considering the reliability of Miss Farrelly's evidence I also had regard to the fact that she is the plaintiff's sister and could possibly have tailored her evidence to favour the plaintiff's case. I discounted this as a possibility as I considered that there was no evidence for that view. Miss Farrelly's evidence was expressed in moderate, unembellished and matter-of-fact terms without any hint of it being tainted by partisanship. The defendant did not seek to impugn the evidence of Ms Farrelly on any matter of significance.
The defendant, Mrs Bradley
188On behalf of the plaintiff, substantive challenges were made to the credibility and reliability of the evidence of the defendant, Mrs Bradley.
189Having considered those challenges, and having reviewed the evidence of Mrs Bradley, I formed the view that she gave confused and unreliable evidence.
190I considered that although Mrs Bradley was significantly stressed, and at times upset when giving her evidence on the events in question, her evidence was nevertheless unreliable.
191This led me to the view that I should prefer the accounts given by the plaintiff and Miss Devine as related in their evidence, where that evidence conflicted with the evidence given by the defendant. In reaching that view, I could not ignore some aspects of Mrs Bradley's demeanour at the time she gave evidence. Whilst it is undesirable and impermissible to make credibility based findings based only on demeanour, as was pointed out to counsel during addresses, demeanour is not an entirely irrelevant consideration in the appropriate case.
192My reasons for assessing the evidence of the defendant to be unreliable are as follows.
193First , I considered that when her evidence is read as a whole, the defendant had only a limited opportunity to see and to take in the events of the collision as she was looking to a vehicle she saw on her right, which she thought was a large four-wheel drive vehicle, as she was turning left. I considered that in those circumstances, her opportunity to see what was going on at the pedestrian crossing in front of her on her approach to the intersection was extremely limited. I therefore considered that her evidence of the events was based on unreliable reconstruction.
194Secondly , I consider this view is supported by the fact that she had not seen the plaintiff or Miss Devine at all at any time before the collision. In my view, this supports the analysis that she must have been looking away from the front of her vehicle at the time of the impact with the plaintiff, and probably to her right, as she stated, even putting to one side the correctness or otherwise of her evidence that there was a four-wheel drive vehicle to her right.
195Thirdly , accepting as I do that the defendant had looked to her right as she approached the crossing, I consider that her observations were fleeting, and therefore less likely to be accurate than those of Miss Devine and the plaintiff.
196Fourthly , no other witnesses identified the presence of the four-wheel drive vehicle reportedly seen by the defendant. That was a further matter that caused me to entertain doubt about the accuracy of her evidence. Evidence in support of this view is that she said that she saw a four-wheel drive vehicle and not the bus, to her right, contrary to the evidence of the other witnesses, particularly Mr Miller, who was more likely to be correct on that point as it was his bus that had been approaching the vehicle in front, which he said was not a four-wheel drive vehicle. Given that Mr Miller was approaching the vehicle in front at a close distance, stopping his 12 tonne bus at a point about half a metre or so behind that vehicle, I consider that he had every good reason to be looking ahead to the vehicle in front of him, and I therefore consider his evidence, that there was no four-wheel drive vehicle ahead, is to be preferred as accurate compared to the contrary evidence of the defendant, whose evidence I find to have been unreliable in this regard.
197Fifthly , the defendant acknowledged that in the events of the collision she had " sort of panicked ". She had undoubtedly been traumatised and badly affected by what she had seen of the fact and extent of the plaintiff's injuries at the scene, as was observed by Sgt Bradley. I consider that those undoubtedly shocking circumstances have had an adverse impact on her ability to accurately recall events. In this regard, it is well understood that such events can distort perceptions and affect the accuracy of recalled events. This is a matter of common knowledge of retained memory and is not a matter requiring expert evidence.
198Sixthly , given that the defendant's vehicle had struck the plaintiff on the pedestrian crossing, and given that the defendant had not seen this occur, and that such circumstances would naturally give rise to at least a suspicion of fault on the part of the defendant as to her driving at the time, I nevertheless consider that the defendant adopted a naturally defensive stance when giving her evidence. However, in doing so, I consider that she unreasonably went further and sought to justify her position by reference to a matter for which she had no direct knowledge. In that regard, she invoked an explanation that it was the plaintiff who had run across the road. This account was given in circumstances where she had no first hand knowledge of that putative or asserted fact, and she could not justify that assertion based on her own observations. In my view, this tends to indicate that her evidence was based on a reconstruction for which she had no direct knowledge or proper foundation, other than unreliable hearsay.
199Seventhly , I had reservations about the defendant's evidence, not because of the manner of some of her answers, which were at times combative, which was perhaps understandable because she felt under attack from the cross-examiner over her driving on the day in question, but rather, because she persistently gave unresponsive answers in cross-examination, despite repeatedly having her attention drawn to the necessity of addressing the questions put to her. Her repeatedly unresponsive answers, and the guarded nature of her answers, and her unwillingness to make appropriate concessions in cross-examination, were factors that led me to doubt the reliability of her evidence.
200An example of this was when she was questioned about whether her description of her left turn manoeuvre was based on an actual recollection or what she " would have " done at the time, she persistently avoided giving a direct answer to the question: T135.30 - T136.34; T136.46 - T137.20.
201Eighthly , for the reasons that follow, uncertainty arose from within the evidence of the defendant as to the accuracy or reliability of her evidence generally because of matters she referred to in her evidence as having occurred after the accident.
202Understandably, shortly after the accident the defendant committed her account of events into the form of written notes. In such circumstances, it could ordinarily be assumed, subject to considerations concerning possible reconstruction, that such contemporaneous notes were more likely to represent a more accurate and considered account of the relevant events than an unrefreshed memory drawn upon some 4 years after the event.
203In this regard, surprisingly, the defendant said that when she had made two separate statements to her CTP insurer, the first dated 17 April 2008 and the second dated 17 August 2009, she did not refer to those earlier notes she had made as a basis for making her subsequent statements. Also, in her evidence she said she felt it wiser to stick to her statements when giving evidence when questioned about the possibility of having relied upon those contemporaneous notes.
204That evidence therefore left me with some considerable unease as to whether her evidence was in fact at all accurate as it gave rise to a suggestion that there may have been some material difference between her more contemporaneous notes and those later statements she gave to the insurer. That view arose because of her use of the expressions that she decided she would " stay with " and felt " wiser sticking to " those statements to the CTP insurer, thus implying a possible conflict between the contemporaneous notes and her statements. That question which arose from her evidence could not be resolved because those statements could not be evaluated to allay any such unease. In my view, the defendant's use of the word " wiser " in this context implied that there could well be some variation between the content of her 2008/2009 statements and her earlier notes.
205Ninthly , accepting as I do that in the events following the collision, Miss Devine had thumped or banged upon the defendant's vehicle in order to get her to stop, I consider that the defendant's inability to recall such an event, perhaps due to the shock of the surrounding events, nevertheless leads me to consider that she has an imperfect and unreliable recollection of the events as a whole, at least compared to that of Miss Devine.
206As a consequence of the foregoing matters I considered the defendant to be an unreliable witness in connection with her account of the events of the accident. As a result I consider that I should generally prefer the accounts given by the plaintiff and Miss Devine in my analysis of the relevant sequence of events surrounding the cause of the accident.
Sgt Burrows
207Despite the attack made by senior counsel for the plaintiff on Sgt Burrows in cross-examination, which included invoking the mechanism of a " police verbal " or the incorporation of some fabricated content of the plaintiff's statement to explain the challenged content of the plaintiff's statement recorded in the police notebook, I consider that Sgt Burrows gave truthful evidence to the best of his recollection, and I accept his denial in which he stated that it was not his practice to resort to " verbal " the plaintiff and that he had not done so as was suggested.
208That said, I consider that the evidence of Sgt Burrows, as to his recall of the circumstances in which he took the statement in question from the plaintiff, was given with the understandable limitations imposed by the effluxion of time, which meant his evidence of those surrounding circumstances must have been based largely on his practice at the time.
209Understandably, Sgt Burrows could not recall being aware of any impairment of concentration or emotional distress on the part of the plaintiff when the statement was taken. At that time, the plaintiff would still have had a shaved scalp with limited regrowing stubbled hair as a variant of what is shown in the photographs comprising Exhibit "D". It is also possible that she could have at least worn a bandana or a similar covering on her head to conceal the sight of her previously shaved head, as occurred when she later resumed her schooling. I infer this from the plaintiff's evidence, and the photographs of her shaved scalp and her evidence, which indicated that this state caused her embarrassment.