Gillett v Murphy & Ors

NEGLIGENCE - finding of trial judge on credibility of witnesses - standard of review of such findings.

NEGLIGENCE - whether plaintiff should have been allowed to reopen its case - plaintiff took a strategic decision in not calling a witness itself and was not necessarily entitled to reopen its case when the defendant failed to call the witness.

EVIDENCE - whether s54 of the Evidence Act 1995 confers an obligation on the trial judge to use a view as evidence and is obliged to state what was observed on the view even though no inference was drawn. The appellant was an apprentice jockey who was injured when his horse fell while on the racetrack owned and conducted by the respondents. The appellant claimed that the fall occurred when another horse came racing around the track, frightening his horse and causing it to run very close to the rail on the inside of the track. The appellant stated that the horse stumbled on the uneven ground under the rail, and that he fell of the horse at this point. The respondent submitted that the appellant fell from his horse immediately after the other horse frightened it, and that this fall occurred some distance from the inside rail. The trial judge found for the respondent. The appellant contended that the trial judge was in error in finding that the appellant had not proved its case, and in failing to state whatever conclusions she had drawn from her viewing of the racetrack, and in refusing the appellant leave to reopen their case in order to call a key witness. It was also claimed that the respondent's case was not adequately put to the appellant at trial. HELD (per Rolfe AJA, Mason P and Grove AJA agreeing):

(1) The trial judge's primary finding as to liability was based on her views as to the credibility of the witnesses. Given the advantage a trial judge has in assessing such matters, the Court will be very reluctant to take a different view, and on these facts, there was sufficient evidence to support the position taken by the trial judge. Rosenberg v Percival (2001) HCA 18, cited. (2) Although there were several demonstrably incorrect statements made by the trial judge in relation to her assessment of the witnesses, these errors were not decisive. Rosenberg v Percival, cited. (3) Section 54 of the Evidence Act 1995 does not confer an obligation on the Court to treat a view of a site as evidence, nor does it require the trial judge to state her impressions of the view if she has not drawn any inferences from it. (4) The trial judge was entitled to refuse the appellant leave to reopen its case in order to call upon the evidence of a particular witness. The appellant made a strategic choice not to call that witness themselves, but rather to allow the respondent to call the witness and then to cross examine them. It was entirely within the discretion of the trial judge to refuse the appellant leave after the respondent subsequently failed to call this witness. (5) In any case, the evidence of this witness would not have significantly assisted the appellant. (6) The respondent's case was put to the appellant in sufficient detail during cross examination, so that the appellant had no right to argue that it should have been entitled to re-open its case. ORDERS Application for leave to appeal dismissed with costs.

1 MASON P: I agree with Rolfe AJA. 2 ROLFE AJA: Introduction .

The plaintiff, Mr Terry Brian Gillett, who was, at all material times, an apprentice jockey and for whom Mr C.T. Barry of Queen's Counsel and Mr I. Davidson of Counsel appeared both in this Court and in the District Court, sued a number of defendants/respondents, who, speaking generally but adequately for present purposes, controlled, conducted and managed horse racing for the Deniliquin Racing Club at Deniliquin Race Track. They were represented in this Court by Mr I.G. Harrison of Senior Counsel. In the District Court by Mr P.J. Deakin of Queen's Counsel and Mr G.N. Whitehead of Counsel appeared for certain of them and Mr Butler of Counsel for the others. The appellant alleged that in consequence of the respondents' negligence he was thrown from a racehorse at that race track on 2 January 1995 in consequence of which he suffered serious personal injuries in respect of which he sought to recover damages. 3 The proceedings were heard by her Honour Judge English at Deniliquin over four days during the latter part of November 1998 and, on 10 May 1999, her Honour delivered judgment in which she found a verdict for the respondents and ordered the appellant to pay their costs. Her Honour made no findings on the issues of contributory negligence or damages which, of course, were strictly unnecessary in the light of her decision. Whilst appreciating the heavy load imposed on Judges at first instance, it is usually of assistance if they determine all matters in dispute so that if this Court comes to the view that the primary conclusion is not correct it may well be possible for it to deal with the other matters and, thereby, avoid the necessity of a new trial. Insofar as possible, in my opinion, every effort should be made to achieve this, because new trials necessarily involve the taking of further Court time in the District Court, and additional delay, expense and anxiety to the parties and the possibility that the recollection of witnesses may become less certain or witnesses may no longer be available. 4 In the present case, although Mr Barry initially sought a new trial limited to damages, he ultimately recognised that if the matter has to return for a new trial it will be necessary for it to be held on all issues. 5 The relevant facts can, in my view, be stated quite shortly. The appellant, who was born on 5 July 1969, commenced his apprenticeship as a jockey in about 1992. In early 1995 he was indentured to a trainer through whom he was engaged to ride a horse known as Jim's Advice in the seventh race at Deniliquin on 2 January 1995. This was also the last race on the programme for that day. The appellant had not ridden at Deniliquin prior to this and he had never ridden Jim's Advice. He had also been engaged to ride a horse in an earlier race on that day, but as he was unable to make the necessary weight he was unable to fulfil that commitment. He arrived at the track at about the time of the second or third race. Notwithstanding that he had not ridden there before, he did not walk around the track checking if there were "any good spots, bad spots or whether the track's just pretty even all round", which an experienced jockey, Mr Post, said in evidence he would have done, not having previously ridden at that track. 6 The last race was scheduled to be run at 5 pm. The plaintiff mounted and took Jim's Advice out of the mounting yard onto the course proper and then turned to the left to ride the horse to the barrier. The winning post was approximately opposite the entrance to the mounting yard. The appellant was riding to the barrier in company with another jockey, Mr Robert Andrew Beattie, and, he said, a third jockey, Mr B.J. Ryan. Mr Ryan's absence from the hearing was explained satisfactorily. Their positions on the course were said to be that Mr Ryan was riding his horse closest to the inside running rail, Mr Beattie was riding his in the middle and the appellant was riding on the outside of, or lefthand side of, Mr Beattie. He was looking to his right talking to Mr Beattie and not paying attention, on his own admission, to what was happening behind. 7 The appellant's version was that a horse ridden by another jockey, Mr Craig Petty, came at a faster pace than the other three horses were travelling and forced its way between the mounts of the appellant and Mr Beattie. This startled Jim's Advice, which, initially, veered a little to the left and then, probably because of the speed at which Mr Petty's horse was travelling, quickened pace considerably, perhaps being of the view that the race had started. Subsequent events, to which I shall refer in more detail, showed that the event also "spooked" Mr Beattie's horse, which also quickened its pace. 8 At some stage, the time and place being in issue, Jim's Advice's sudden movements either dislodged the appellant close to where it was passed, or caused him to be thrown from Jim's Advice near the running rail, as the appellant alleged. In any event, as a result of his falling or being thrown he landed on his head on the track and suffered injuries. 9 In the way in which the case was conducted, the essential questions were the state of the track and whether the appellant came off his mount at about the time when the other horse emerged on the scene, in which case it was not suggested that there was any negligence on the part of the respondents; or whether he was thrown from the horse when it was in close vicinity to the inside running rail in an area where the ground sloped down to a dish drain, which was, at least essentially, beyond the course proper and inside, i.e. on the non-racing side of the inside running rail. The appellant alleged that the accident occurred at that point in consequence of Jim's Advice losing its footing, stumbling and thereby throwing him over its head. In the light of her Honour's finding as to where the appellant fell, the issue of the state of the track ceased to have significance. 10 Whatever happened there is no doubt that after the appellant was dislodged Jim's Advice continued to gallop and, for reasons to which I shall refer in a moment, escaped from the racetrack and was not ultimately restrained and recovered until it had travelled some seven or eight kilometres. 11 There was a great deal of argument at the hearing as to where these various events happened. The evidence supported the view that the area was somewhere between 600 metres and 800 metres from the winning post, although no-one, including the appellant, was able to be in any way precise about this. Nor was the appellant able to be specific about where on the length of the track the accident occurred: Tp 63. This posed obvious difficulties in establishing that it was in the area where the ground sloped to the dish drain and caused a danger. 12 The evidence established that there was only one running rail around the course, being the inside one. There was no outside running rail and this, no doubt, assisted Jim's Advice to escape from the course. The running rail was white and made of light aluminium. Because horses brushed against it during races from time to time, it was manufactured so that there was some give in it and it was supported by posts the base of which were a short distance away from it and further to the inside, i.e. away from the course proper, which posts were bent inwards towards the course proper at the top where the running rail was attached. This meant that the posts were clear of horses running close to the rail.

The Appellant's Case . 13 In his opening to her Honour, Mr Barry stated that in the area beyond the 600 metre mark, i.e. the point where there is a sign indicating that the horses, when racing, are 600 metres from the winning post, the course had dropped away and that the appellant would give evidence that in the course of going to the barrier he was travelling at a steady pace and, when overtaken by another horse, Jim's Advice quickened its pace:- "... so he let it quicken its pace and then as a means of guiding the horse, he then positioned the horse very close to the rail from the position where he was, coming around what he will tell your Honour is about the 600 metre mark. What then happened was that the horse was travelling then at about half to three quarter speed and in the case of a racehorse of the type he's riding that's about, he will tell you, at about 40 kilometres per hour. The horse got into this sloping ground in the vicinity of the rail and lost its footing. The result of that was that the plaintiff was speared over the top of the horse and head and shoulder first into the turf and sustained a number of very severe injuries". 14 The plaintiff was asked in chief what happened and, conformably with the opening, he said, Tp 15:- "A. ... and as we were going around we were having a talk and there was probably a horse gap between me and Robby and another jockey went through the gap, by the name of Craig Petty and when he's gone through the gap he's given my horse a scare. My horse has wanted to race then, he thought the race was on so I've let - give him a bit of rein and I've let him canter off and because there was no outside running rail I took him to the inside running rail to give him something to follow cause this was only his second or third start, so I took him to the rail and as I was going around to the rail I got closer and closer to the rail, if a horse brushes a rail, it happens all the time in racing, there's nothing sort of, anything about it, he come right across just before he's got near the rail he's put his right foot in the trench or whatever you'd like to call it, he hit the rail and then he's crossed his other foot over and he stumbled right down on his nose and he's just - I've just gone like an arrow straight into the ground and that's all I really remember". 15 At Tp 18, the appellant said in chief that his horse hit the running rail when he put his right foot in and fell towards the running rail. He also said that he had no trouble in getting the horse across to the running rail and that in his experience horses are trained to follow it. He estimated the speed at the time of the fall at 40 to 45 kilometres, although the horse was not travelling at full speed. On this version the appellant came off after the horse hit the running rail. 16 At Tp 19, the appellant said:- "A. Well when he put his foot in the hole he's going downwards and I thought Oh, Oh, then he's hit the rail. Like this has all happened within a second but as soon as his head went down I thought I'm going and I'm trying to hang on and then he's just, as I say he's just virtually like stopped and I'm still travelling at 40ks and I've just gone like an arrow". 17 In this Court Mr Barry stated that the appellant's case was that he was riding with Mr Beattie to the barrier about four to six metres out from the running rail when Mr Petty's horse went between the two and Jim's Advice wished to race. The appellant took Jim's Advice to the inside rail at a quickened speed and at an angle that was "more acute than usual", the consequence being that the horse's right foot went into what he described as a trench causing the fall. 18 On one reading of the way in which the appellant's case was put on the two occasions, it may seem that there was no great difference. However, in my opinion, if it ever became relevant, there was a substantial difference. My impression from reading Mr Barry's opening to her Honour and the evidence of the appellant in chief as to how the accident happened was that it happened when the appellant had got Jim's Advice to the rail and was riding parallel to the rail and the horse put its foot on unstable ground. If there was unstable ground or, as the particulars alleged a dish drain or gully located on the actual track surface, rather than on the other side of the running rail, one can see a basis for alleging that those who had the control and management of the track may have been negligent in not providing an even area on which the horses would race. 19 On the other hand, if the course followed by the appellant was to direct the horse towards the running rail at a "more acute" angle, it is difficult to see what the negligence was, it not being reasonably foreseeable that a jockey would take such action. This needs some slight further explanation. 20 In New South Wales horses race clockwise. In Victoria horses race anti-clockwise. Whilst Deniliquin is in New South Wales, the horses raced on that track anti-clockwise. As I have said, on leaving the mounting yard the appellant turned to the left and was, therefore, proceeding towards the barrier in a clockwise direction. At the barrier the horses would have turned and raced in an anti-clockwise direction, in the course of which they would have been required to race in the vicinity of the area where the appellant alleged Jim's Advice came to grief, although they would have been travelling in the opposite direction. 21 The evidence was that there had been no falls in this area during races, either on that day or for many years before, and Mr Barry expressly conceded that if the horses were racing in that area and in an anti clockwise direction there would have been no danger to them. 22 Therefore, if the appellant's case had been put on the basis of the opening in this Court, it is difficult to see how there was any foreseeable risk of injury in the circumstances. That would have involved it being foreseen that a horse travelling towards the barrier, which was "spooked", would have been ridden towards the inside running rail and then ridden adjacent to that rail in the opposite direction to which the horses raced.

The Respondents' Case . 23 The respondents' case, however, was that the accident did not occur in any way like the appellant asserted. Their case was that when Jim's Advice was "spooked" and moved somewhat to the left the appellant was immediately dislodged and fell from the horse some distance in from the running rail. This, on the respondent's case, occurred before the horse got anywhere near the running rail. As I have said, if that were the case, no submission was made that the respondents were negligent. 24 Mr Barry complained that he was unaware that this was the case the respondents were seeking to make. I do not understand, if I may say so with respect, why. Certainly, Mr Deakin explored with the appellant the version of events he had given and put to the appellant that there was no trench on the track and that if he had continued to move straight ahead there would have been no obstacles in his path and he could have brought the horse under control, to which the appellant replied "probably"; and:- "Q. Yes. And all that happened is that as a result of that startling you either lost control or you fell from the horse didn't you? A. No I did not. Q. And the reason I put to you that that happened was because you hadn't been paying sufficient attention because you were too absorbed in your chatting with Mr Beattie? A. I would not say that sir". Tp 76. 25 Earlier, Tp 69, the appellant conceded that he was absorbed in his conversation with Mr Beattie and did not realise that Mr Petty's horse was coming from behind until it happened, and that he was inattentive. He gave the following evidence:- "Q. And it was your inattention that resulted in both you and, as far as you observed, your horse being startled by this horse coming up behind wasn't it? A. Yes sir. Q. And it was as a result of that, startling effect and your inattention that you fell from the horse, wasn't it? A. No sir. Q. And I put it to you Mr Gillett that neither the rail nor anything under the rail or in the vicinity of the rail had anything to do with your fall from the horse? A. No sir that's not true". 26 Thereafter, the appellant was asked how far Jim's Advice travelled after it was startled and he agreed that he could have travelled as far as 200 metres, which further indicated that if he was guided to the running rail he must have been running parallel with it for some distance. 27 Earlier, Tp 67, the appellant agreed with Mr Deakin that the presence of the other horse startled his, and:- "Q. And it startled your horse sufficiently Mr Gillett I put it to you for you to be thrown from your horse didn't it? A. No it did not, I took the horse to the - when he - I led him - gave him a bit of rein, let him go forward, I took him to the rail, inside rail, because he was trying to get to the outside". 28 It seems to me that Mr Deakin had put clearly to the appellant, and the appellant understood this, that at the time Jim's Advice was startled he was immediately thrown from it, Tp 67, and that it was a result of the startling effect and his inattention that he fell; Tp 69, and that neither the rail nor anything under it or in its vicinity had anything to do with the fall. The evidence led for the respondents was that the appellant fell almost immediately after Jim's Advice was startled. Mr Deakin had put this to the appellant in clear terms and in compliance with the requirements of the rule in Browne v Dunn.

The Issues Before Her Honour . 29 Her Honour identified the two principal issues as the condition of the track and how the accident occurred. After a detailed examination of the evidence, she said that it was "abundantly" clear that the appellant has "magnified and fabricated his alleged disabilities" and:- "I find that Mr Gillett has not discharged the onus of proof in relation to the accident itself and the extent of the injuries which he claims to have suffered as a result of the accident".

She then repeated, in short form, the way in which the appellant alleged the accident occurred, and continued:- "Had this been so, the plaintiff's position on the racecourse would have been next to the running rail. This version is inconsistent with the various histories given the doctors who either treated the plaintiff or assessed him for medico-legal purposes".

The second sentence, I have just quoted, appears to be in error. The word "inconsistent" bears the connotation that the appellant gave histories of being other than near the running rail, which he did not. All but two of the medical reports were silent on this point. One said that he was near the rail and another that he was near "the outside rail" of which there was none. It will be necessary to consider the effect of this error. 30 Her Honour then directed herself to where the fall occurred. She said:- "The evidence of the independent witnesses, Donna Armstrong, Neil Gorman, Darryl McLean, Jeffrey Graham (sic) and the plaintiff's fellow jockey Mr Post, is overwhelmingly to the effect that he was located towards the middle of the track when he fell from the horse."

Mr Barry attacked the description of Messrs Gorman and McLean as "independent". They were stewards, who had inspected the track, but they were not parties and, in my view, this description of them does not indicate error. In my opinion, her Honour was using the word "independent" to indicate that they were not parties. 31 However, there is evidence in the next sentence, which does contain error:- "There is no evidence, other than the plaintiff's, that the horse, Jim's Advice, hit the running rail, stumbled and returned to the middle of the track where the plaintiff was thrown and remained stationary".

The appellant gave no evidence to that effect, i.e. that all those things happened. There was evidence from others that they heard the running rail being hit by Jim's Advice. The critical issue was whether, when it did, the appellant was still mounted or very shortly before had been dislodged, on the one hand, or whether, on the other, he had fallen at the time the horse was "spooked". 32 Reflecting on this sentence what I think her Honour was trying to say was that the appellant could only have come off the horse, where she found he did, i.e. well in from the rail, consistently with his evidence of riding the horse to the rail and the horse stumbling if, thereafter, the horse had returned to the vicinity of the middle of the track and there dislodged him. But the appellant did not try to make any such case. 33 Her Honour then found that the track was in good order and safe for the use by jockeys for racing, which finding was based on the evidence of witnesses she accepted and supported, to some extent, by the report prepared by a former jockey, Mr Malcolm Johnson, who was called by the appellant. 34 After referring to the evidence of the witnesses called by the respondents, she said, judgment p 34:- "I am satisfied that the witnesses called by the defendants were good, honest, down-to-earth country folk. Their versions are to be preferred. The overwhelming weight of their evidence was inconsistent with the plaintiff's case of a defective track falling away in the area of a dish drain. I find the area under the running rail had no causative role in the plaintiff's accident." 35 At the conclusion of her reasons, her Honour found that the appellant's claim should be dismissed "for the following reasons":- "1. the evidence does not establish on the balance of probabilities the accident occurred in the circumstances described by the plaintiff; 2. the evidence does not establish on the balance of probabilities that the plaintiff sustained anything other than a minor soft tissue injury from which he had recovered by May 1995; 3. the evidence does not establish on the balance of probabilities that any ongoing migrainous condition is related to the injuries". 36 It is not clear why her Honour had to make the findings in pars 2 and 3, unless, perhaps, she was seeking to do in a shorthand way that which I suggested was desirable after a full hearing and to avoid a new trial or was repeating matters which caused her to doubt the appellant's credibility . However, her Honour's first reason, combined with the balance of her judgment, was sufficient to dispose of the case. She both rejected the appellant's evidence and accepted that of the respondents' witnesses. Once that occurred the result was inevitable. The question is whether this Court should interfere with those findings. 37 The findings were based, obviously enough, on her Honour's assessment of the witnesses and, in particular, their credibility. In those circumstances it is not permissible for this Court to set them aside even if it were to think that the probabilities are against or even strongly against them. Because of the importance of this application of principle in the present case, I propose to quote four paragraphs from the judgment of McHugh J, with whom Gummow J agreed, in Rosenberg v Percival (2001) HCA 18:- "38. Wherever the boundary of review lay, in the circumstances of this case, the Full Court could not set aside the trial judge's finding on the bare ground that he did not give sufficient weight to matters that the judges of the Full Court thought assisted the patient's case. In Devries (17) Brennan and Gaudron JJ and I also said: 'More than once in recent cases, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against, even strongly against, that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertably established by the evidence" or which was "glaringly improbably".' 39. To similar effect are remarks of Deane and Dawson JJ in Devries. Their Honours said (18) that, 'Consistently with the obligation to make a full allowance for the advantage which the trial judge has enjoyed, the Full Court could properly overturn the trial judge's finding only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open' to make the finding that he did. 40. In this case, the trial judge's finding was based on the credibility of the witness and on facts that were not 'inconsistent with facts incontrovertably established by the evidence' or 'glaringly improbable'. That being so, it is impossible to conclude that he failed to use or has palpably misused 'his advantage' because he did not give to countervailing matters the weight that the Full Court thought they deserved. 41. One of the consequences of the 'advantage' of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury." 38 Views consistent with this approach were stated by Kirby J at pars 105 and 160 to 164, and Callinan J at pars 222 and 223.

The Issues on Appeal . 39 There were three main submissions made on the hearing of the appeal:- (1) whether her Honour was correct in concluding that the appellant had not established, on the balance of probabilities, the version of the accident for which he contended; (2) whether her Honour was in error in failing to state whatever conclusions she had drawn from the view, which she held; and (3) whether her Honour was in error in refusing to allow Mr Barry to reopen his case to call Mr Beattie. 40 As to the first issue, I am in no way satisfied that her Honour fell into error and, even if I were to have come to a different view, I do not consider that the appellant has established that her Honour either failed to use or palpably misused her advantage or acted on evidence which was inconsistent with facts incontrovertably established by the evidence or glaringly improbable. 41 Whilst the Court was taken through the evidence at great length by Mr Barry, it is quite clear that there was evidence, which her Honour was entitled to accept, that the appellant fell a distance in from the rails and, more importantly, in circumstances which bore no resemblance to those which he said led to his falling. The evidence of Mr Gray was directly contradictory of the appellant's. It was subjected to detailed analysis by Mr Barry but, at the end of the day, it remained intact. There were, as one might expect in the giving of evidence almost four years after the event which had happened in a matter of seconds, some discrepancies. However, his evidence was that as Jim's Advice and another horse were travelling towards the barrier, Jim's Advice either shied or faltered and moved out and the rider was dislodged onto the righthand "like down the horse's right shoulder": Tp 224. Mr Gray said, Tp 225, that from what he recollected the appellant stayed where he was, but the horse continued "and did go into the running rail a bit further on, but the rider had been dislodged by then": Tp 225. Mr Gray said that the appellant fell some eight to ten feet from the rail, coming to the ground "a little bit less than eight to ten feet, but something about that". 42 In cross-examination, Tp 227, Mr Gray said that he was asked what had happened and replied:- "Oh one of the jockeys just fell off". 43 Mr Barry submitted that this evidence was inconsistent with other evidence, and that it was, in any event, inherently improbable that the accident happened in the way in which Mr Gray asserted because what he had observed was "just" an uneventful fall from the horse, whereas the appellant had suffered serious injuries. In my opinion, neither of these criticisms, which were much more fully developed than my reference to them, derogates from the evidence of Mr Gray or, in any event, falls within one of the vitiating factors in relation to credibility to which I have referred. Accordingly, there was no rational reason for her Honour not to accept it. 44 Mr Gray was, to a not insubstantial extent, supported by another witness, the jockey, Mr Post. Although Mr Post did not see the accident happen, his evidence was that he was proceeding towards the starting barrier near the end of the other runners and at about the 200 metre mark he noticed that the appellant had fallen off at around the 500 or 600 metre mark. He rode up to him and, Tp 268:- "Q. When you got to him whereabouts was he on the track? A. He was about the middle of the track, probably say about 6, 7 metres from the running rail". 45 Mr Post was not cross-examined. Mr Barry submitted that his evidence was rendered vague by the use of the word "about" and the words "probably say about". 46 I respectfully disagree. Mr Post, as an experienced jockey, obviously enough knew the difference between some distance between the running rail and being adjacent to the running rail. There was absolutely no reason for her Honour to reject his uncontradicted evidence. 47 Other evidence was given, to which her Honour referred, which indicated that the appellant fell some distance from the running rail. This evidence was consistent with Mr Gray's observations as to how the incident occurred, which, in turn, was consistent with the portions of the cross-examination of the appellant to which I have referred. It was also consistent with Mr Post's evidence. 48 Mr Barry raised a number of matters of complaint. He submitted, firstly, that if Mr Gray was correct the appellant, upon falling, could not have suffered the serious injuries he did. Undoubtedly, it was thought towards the beginning that the injuries may have been very serious - indeed such as to lead to paraplegia or quadriplegia - but this did not eventuate. However, in many cases it has been seen that minor trauma may lead to serious injuries and major trauma to insignificant ones. But even if that be dismissed as pure speculation, the fact is that the appellant fell from a moving horse onto his head and on to a stationary surface. The dynamics of that could well have led to serious injury. Mr Barry also submitted that as the appellant was holding the reins that would, in some way, have broken his fall. There was no evidence to that effect, even if, as was submitted, the appellant had retained his hold on the reins. The reins, so it seems to me, would constitute a very meagre method of breaking such a fall. Nextly, Mr Barry submitted that her Honour was in error when, at p 32 of her judgment she said:- "My findings concerning the accident are based upon the following: Mr Gillett gave evidence that the horse hit the running rail. It was doing 40 to 50 kilometres per hour. The horse put its foot into a hole. He felt its head go down and he tried to hang on but the horse stopped and he went down like an arrow. Had this been so, the plaintiff's position on the racecourse would have been next to the running rail. This version is inconsistent with the various histories given to the doctors who either treated the plaintiff or assessed him for medico-legal purposes". 49 The criticism of the last sentence, was on the basis that there was no inconsistency with the various histories. I have referred to this matter. Notwithstanding that this statement by her Honour was wrong, and even if it played some part in the decision to which her Honour came, which must be a matter of real doubt in view of what she said in the next paragraph, it was pointed out by McHugh J at par 43 of Rosenberg:- "No doubt the trial judge erred in one respect. He regarded the claims of the patient and her husband concerning the deteriorating condition of their garden as dishonestly made. No suggestion of dishonesty in respect of this matter had been put to them in cross-examination. But it is impossible to conclude that this issue played a decisive part in the judge's assessment of the patient's credibility. It was merely one of many matters that led Gunning DCJ to conclude that the patient's testimony was generally unreliable." (My emphasis.)

Gummow J agreed with McHugh J. Kirby and Callinan JJ each expressed concern about this incorrect finding and, at par 166, Kirby J said:- "For example, although I consider that the respondent has made good her criticism of the primary judge's suggestion that the respondent and her husband deliberately and dishonestly allowed their garden to deteriorate, this was only one of a number of findings made adverse to the respondent and her credibility. It was not specifically invoked by the primary judge in his consideration of the causation issue." 50 Callinan J expressed concern about the finding and what he considered was the artificiality of excising clearly erroneous parts of a judgment from others in which no error was apparent. He thought that process "may assume an even more unconvincing air when the error relates to credibility and credibility is a significant issue in the trial": par 222. None-the-less he was of the view that the finding on credibility "must be accepted notwithstanding" his concerns: par 223. 51 Therefore, even though one may find error in relation to an issue of credibility in a judgment, the findings of which are based essentially on credit, the appellant must not merely establish the error, but that it was "decisive". In the instant case this error could not be said to be "decisive" on any fair reading of the judgment. 52 A finding of dishonesty, incorrectly made, seems to me to be a far more serious matter than her Honour's impugned finding in this case. 53 Mr Barry next complained of several errors in the paragraph I have quoted in pars 29 and 30. I am not satisfied that the factual errors in this sentence in any derogated from her Honour's basic finding, founded on the evidence she accepted, that the appellant fell from the horse within moments of its being "spooked" and somewhere near the centre of the track. 54 I would only add, and I do so without wishing to be unduly critical of a busy trial Judge under pressure to produce judgments as quickly as possible for the benefit of the parties, that part of the function of writing judgments is to disclose to the litigants, among others, the reasons for the conclusions. If a litigant reads that which is apparently incorrect on the evidence, the litigant may well, and with justification, harbour a feeling that proper attention has not been paid to the case. However, having said that, I do not regard the mistakes to which reference was made as vitiating the critical findings her Honour made. 55 The second complaint by Mr Barry was that her Honour had failed to state what she gleaned from the view. The view was held some years after the event, on the application of Mr Barry and before addresses. He submitted that s 54 of the Evidence Act 1995 obliges the Court to treat the view as evidence and to record the substance of what the Judge observed. In my opinion the section does not. The Court may draw inferences from what it observes at the view. It need not do so. The critical fact, however, concerning this complaint, is that her Honour did not state in her judgment that she drew any inferences from the view. This was not a case where her Honour set out in the judgment inferences from the view, which she had never stated to the parties to enable them to respond. There is no substance in the complaint. The idea that every time a Judge holds a view he or she is obliged to record what happened on that view, even if no inferences are drawn, must be rejected. 56 The third complaint was the failure to allow Mr Barry to re-open to call Mr Beattie. It was conceded by Mr Barry that her Honour had a discretion as to whether to allow him to re-open, but he complained that she had not given any reasons for exercising that discretion against him. This Court explored the matter in detail with the parties' consent. In my opinion, the starting point for a consideration of this submission is that, prima facie, a plaintiff is bound to call all his evidence in chief in his case. It is only when the plaintiff closes his case that the defendant must decide whether, and to what extent, it is necessary to call evidence. However, there are exceptions to this, particularly in a busy running list in a country town where witnesses have been called and are waiting to give their evidence, although this exception is not confined to country towns. A plaintiff may not have a witness available. Rather than the trial halting awaiting the arrival of a witness, it is a not uncommon feature of litigation for the plaintiff to indicate that that is his case, subject to calling a specified witness or witnesses not presently available. Usually, in those circumstances, common sense prevails and the defendant goes into evidence. There may be cases where that is not appropriate. 57 It would seem to me that in the preparation of the case the evidence of Mr Beattie was something that would have been explored, in the normal course of events, by the appellant's legal advisers well before the trial. He, after all, was the person nearest to the appellant when his horse was "spooked". It is difficult to think of anyone who could have given a better account, on an independent basis, as to what happened. However, it seems that Mr Beattie was not interviewed by those representing the appellant prior to the hearing. 58 Those matters aside it emerged in this Court on further exploration that the respondents had subpoenaed Mr Beattie and that he had attended the Deniliquin Court in answer to that subpoena. It was not suggested that his presence was not known to those representing the appellant. Mr Barry said that he assumed from Mr Beattie's presence that the defendant would be calling Mr Beattie. He did not suggest that he asked Mr Deakin if this was so or obtained any assurance from him that he would be calling Mr Beattie, or asked Mr Deakin to advise him if the respondents proposed to release him from compliance with the subpoena. Nor was it suggested that any other member of the appellant's legal team took any such action. In these circumstances, Mr Deakin, or those instructing him, did release Mr Beattie and he left Deniliquin. A substantial difficulty in the appellant's path on this argument is that a tactical decision had been taken that it would be better for Mr Barry to cross-examine Mr Beattie rather than to call him in chief. That is the only inference I can draw from Mr Barry's very frank statement that he had decided that he would cross-examine Mr Beattie, a decision, however, which was premised on the respondents' calling him and was taken without any assurance that that would happen. No doubt it would, in those circumstances, have been tactically unwise to ask Mr Deakin if he was calling Mr Beattie, as Mr Deakin would not have been obliged to answer such a question, but probably would have been alerted by it to the tactic Mr Barry had in mind. 59 It was only after Mr Beattie was not called by the respondents, that Mr Barry had him return to Deniliquin with a view to his giving evidence in the appellant's case. 60 In my opinion, had her Honour explored those matters, together with one other to which I shall refer, there could have been no complaint about the way in which she exercised her discretion. If a party makes a tactical decision not to call a witness, in the hope that the witness will be called by the other party and thereby the first party will have the advantage of cross-examining the witness, and the second party does not call the witness, then to try to re-open to call evidence which should have been adduced in the case from the beginning could well lead to an exercise of discretion to refuse to allow the evidence to be called. 61 Mr Barry sought to put the matter in another way. He said that the cross-examination of the appellant did not disclose the nature of the case the respondents proposed to make, namely that the fall occurred almost instantaneously with the "spooking" of Jim's Advice. He submitted that this alleged failure either allowed him to re-open or to call Mr Beattie in reply. For the reasons I have given, I am of the view that the respondents' case was sufficiently disclosed in cross-examination of the appellant. 62 The next point, which this Court explored, was what Mr Beattie would have said had he been called. As I have said, apparently no proof of evidence was taken on behalf of the appellant before the hearing, but Mr Barry tendered, without objection, a letter from his instructing solicitors to Mr Beattie of 6 September 1999. It referred to a telephone conversation between the author and Mr Beattie on 13 August 1999, i.e. well after the trial and judgment, and enclosed a draft affidavit "prepared on your behalf". Mr Beattie was asked to read the document, make any amendments he considered necessary, and add any further observations. The letter continued:- "We ask that you provide every recollection you have from when you mounted your horse for the subject race to the events after Terry sustained his fall. As the matter is now proceeding to the Court of Appeal we request your reply as a matter of urgency". 63 The affidavit, which was annexed to the tendered letter and was part of the tender, was apparently sworn by Mr Beattie at Wangaratta. It stated:- "1. In about November 1998, I received a subpoena to give evidence at the hearing of this matter in Deniliquin. 2. On about 25 November 1999 (sic) I attended Deniliquin and conferred with Mr Peter Deakin QC and a Miss Rebecca Williams who I understood to be the solicitor for the defendant. There was also another gentleman present, however I do not recall his name. 3. During the conference, I said to Mr Deakin and Miss Williams words to the effect: 'I was riding up to the starting gates next to Terry. The horse I was riding was approximately 3 horse widths off the running rail. Terry was riding outside me. As we were trotting along B.J. Ryan came down the outside which was on the lefthand side of Terry. B.J. spooked both the horse I was riding and the horse that Terry was riding. I let my horse run and Terry grabbed the reins of his horse and turned it towards the running rails. I heard Terry's horse collide with the running rail. I subsequently turned around and saw Terry lying on the racecourse. I definitely heard Terry's horse hit the running rails.' 4. On the same day I was advised by Miss Williams that I could return home and that I would not be required to give evidence. 5. On 26 November 1999 (sic), Mr Jeremy Mackenzie contacted me by telephone. Mr Mackenzie advised to me that he required me to again attend Deniliquin for the purposes of giving evidence. 6. On the same day I was called to give evidence. I gave a small amount of evidence when objection was taken. I was stood down and returned home. 7. Had I been permitted to give evidence I would have said precisely what I had said to Mr Deakin, QC and Miss Williams in conference on 25 November 1998. In addition, I would say .." 64 Mr Beattie did not advance any further material. 65 I am unable to see how this evidence would have assisted the appellant's case, save, arguably, in one respect, namely that he saw the appellant grab the reins and turn the horse towards the running rails. On the other hand, it flatly contradicted the appellant's evidence that a horse ridden by Mr Petty pushed between that being ridden by the appellant and that being ridden by Mr Beattie. It also contradicted the appellant's evidence that Mr Ryan was riding on the inside (righthand side) of Mr Beattie and, in doing so corroborated Mr Gray's evidence that there were only two horses. These various matters would have cast further doubt on the appellant's recall of the incident. Further, Mr Beattie put the appellant's horse at least four horse widths out from the rails. 66 The statement makes it clear that Mr Beattie was fully occupied in bringing his own horse under control, that he did not see the appellant fall near the running rail, although he heard Jim's Advice collide with it, which fact ultimately was not in issue. The critical fact was that Mr Beattie gave no evidence, and presumably was unable to give any evidence, as to when the appellant fell from his horse, as to which her Honour accepted the evidence that it was at the time of the "spooking" of the horses. 67 In these circumstances I am satisfied that no injustice was done to the appellant by the refusal to allow the case to be reopened. When that factor is coupled with the obvious tactical decision taken in relation to Mr Beattie, it seems to me that the complaint about her Honour's failure to allow the appellant to re-open disappears.

Conclusions . 68 The matter came forward both as an application for leave to appeal, which appeared to proceed on the basis that the parties were prepared to argue the appeal. In my view this was a matter in which leave to appeal was needed. There was no affidavit pursuant to Pt 51 r 8. Notwithstanding that the argument proceeded for almost a day, I am not persuaded, after a full review of all the material, that there was any reason why leave to appeal should be granted. In my opinion the only order necessary is that the application for leave to appeal be dismissed. 69 On the other hand, if others take the view that either leave to appeal was not necessary or because of the way in which the hearing proceeded the respondents were not taking any issue on that point, (although it would not be for them to waive compliance with the rules), I would be prepared to make an order granting leave to appeal, although reluctantly in the absence of compliance with the rules, and to order that the appeal be dismissed with costs. This latter course should not, in my opinion, be taken as any precedent as to the way in which matters can come before the Court, or being before the Court should be determined. 70 The order I favour is that the application for leave to appeal be dismissed with costs. 71 GROVE AJA: I agree with Rolfe AJA. **********

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