The Motor Vehicle (Third Party) Insurance Act 1943

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

American International Group Incorporation v London American Insurance Corporation (1982) FSR 441

Covell Matthews & Partners v French Wool Ltd [1977] 1 WLR 876

Ex parte Stiles (1990) 2 WAR 270

Government Employees Superannuation Board v Martin (1997) 19 WAR 224

Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995

Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533

R v Watson; Ex Parte Armstrong [1976] HCA 39; (1976) 136 CLR 248

Re Gear deceased [1964] Qd R 528

Re Hope; Ex parte Carter (1985) 59 ALR 609

Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342

Singh v Crafter, unreported; FCt SCt of WA; Library No 8434; 12 April 1990

Stahlschmidt v Walford [1878-79] 4 QBD 217

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

1 PIDGEON J: I have read in draft the reasons to be delivered by Templeman J. I am in general agreement with those reasons and for those reasons I would dismiss the appeal. I would add the following observations.

The second category: refusal of leave to discontinue

2 The application to discontinue in the circumstances it was made was a demonstrable abuse of process which, amongst other things, would undermine the authority of the court. The trial Judge was right to peremptorily dismiss it.

3 The grounds relating to this are entirely without merit. The trial Judge conducted himself properly under conditions which should not have been created. The written submissions under this particular ground setting out what the function of a Judge should be are set out in the reasons of Templeman J. I do not consider these set out the law and, as there has been no arguable case to support bias, there is no need to set out what the law would be in this situation other than to say that it would only be in extreme circumstances that a trial Judge would disqualify himself in the course of the trial. One would hope that such circumstances would never arise. An aborted trial can lead to grave injustice apart from the expense.

4 The question of credibility is one for the trial Judge who reaches a view on many factors, including his or her observation of the demeanour of the witness and the impression the witness makes. The decision is based on a mixture of factors, many of which cannot be expressed. If the trial Judge does express detailed reasons, then it could be the case that a later examination may show that some factors might not stand up. This would not normally affect the overall decision. I agree with the reasons of Templeman J that there are reasons to which his Honour refers which do not stand up. I consider, on the facts of this case, that does not affect the overall view to which his Honour came. The learned Commissioner in the present case is a very experienced judge of witnesses and there is nothing which has been referred to which satisfies me that his conclusions were wrong.5 IPP J: I have read the reasons to be published by Templeman J. I am in agreement with those reasons and have nothing further to add.

6 TEMPLEMAN J: The appellant, who was formerly a police officer, claimed to have suffered an injury to his cervical spine on the night of 25-26 June 1993 when he was a passenger in a police pursuit vehicle which was involved in a high-speed chase of a stolen Holden Commodore sedan.

7 The appellant brought proceedings in negligence against his fellow police officer who was the driver of the pursuit vehicle. He was the first defendant. The second and third defendants were the State of Western Australia, and the Commissioner of Police. The appellant contended that they were liable vicariously for the negligence of the first defendant; and liable directly, being in breach of their respective duties of care to the appellant not to expose him to risk of foreseeable injury.

8 The appellant was not able to join the driver of the Holden Commodore who abandoned the vehicle and escaped. Instead, the appellant joined as the fourth defendant the State Government Insurance Commission which is liable for the actions of the unidentified driver pursuant to s 7(2) of The Motor Vehicle (Third Party) Insurance Act 1943.

9 The action was tried before a Commissioner of the District Court in April and July 1998. The learned Commissioner delivered a lengthy reserved judgment on 21 October 1998, when he dismissed the appellant's claim.

10 The appellant now appeals to this Court. He seeks a retrial. However, his grounds of appeal are far from satisfactory. They do not comply with O 63 r 2(2) which requires a notice of appeal to state "briefly, but specifically, the grounds relied upon in support of the appeal".

11 By contrast, the present grounds of appeal are, in substance, written submissions some 25 pages long. As the Court pointed out at the opening of the appeal, there could have been no answer to an application to strike them out. They have made the Court's task more difficult than it should have been.

12 Counsel for the appellant informed the Court that the grounds of appeal fall into four broad categories, which are inter-related to a degree. They are:

1. The Commissioner erred in refusing to allow the appellant to re-open his case to call certain witnesses in relation to two issues.

2. The Commissioner erred in refusing the appellant unconditional leave to discontinue.

3. The Commissioner was biased against the appellant.

4. The Commissioner's findings on credibility are flawed.

The first category: the applications to re-open

13 There are two contentions. In order to understand the first it is necessary to explain that the Commissioner found that the appellant was not injured in the pursuit: he found that the appellant's symptoms were the result of an injury he sustained while playing indoor cricket on 22 June 1993, some three days before the pursuit.

14 The allegation that the appellant had suffered injury while playing indoor cricket was raised by the first, second and third respondents (defendants) in November 1997, by way of an amendment to the defence. However, it was not apparent from the amended defence that the defendants did not intend to prove the cricket injury by calling eye-witnesses, but by relying on an admission said to have been made by the appellant to the first defendant and to two other police officers. This strategy did not emerge until the appellant was cross-examined.

15 In the course of cross-examination, the appellant was asked about the location of the indoor cricket ground where he had attempted to play in 1994.

16 The appellant said he was unable to recall where he had played in 1994: but he knew the team had played at Belmont in 1993, at the Strikers indoor cricket arena. He was unable to give the address, but thought it was "off Belmont Avenue or in the industrial area around Belmont Avenue." The appellant was then asked whether it could have been in President Street. He said that it could have been: he accepted that the name had rung a bell.

17 Viewed objectively, the question whether Strikers "could have been" in President Street was misleading. That is because Strikers is located in Esther Street, Belmont: it is not in President Street, Welshpool, where there is, or was, a different indoor cricket centre.

18 A little later in his cross-examination it was put to the appellant that he had played indoor cricket on Monday 21 June 1993. He said he believed he had. It was then put to the appellant that he had played indoor cricket on 22 June. He said it was possible he could have done: and that "quite possibly" he had played in the week prior to Friday 25 June - the night of the pursuit. He said that if someone gave evidence that he had played during that week, he could not deny it.

19 This line of cross-examination anticipated the evidence given by the first defendant, Constable Sandilands. In his evidence-in-chief he said that on 16, 17 or 18 June 1993, the appellant had told him he would be playing indoor cricket on the following Tuesday night (22 June). He asked Constable Sandilands to collect him from that address.

20 Constable Sandilands said he could not remember the address, although he knew it was "somewhere south of the river". He said that when the appellant made the request, he (Sandilands) wrote the address on a piece of paper which he left in his occurrence book.

"...I remember the street was only short, it was a dead end, it had a cul-de-sac at the end of it and the cul-de-sac butted onto a major road."

He believed the major road was Orrong Road, "but I can't be a hundred per cent sure".

22 Constable Sandilands then said he had later been to President Street, which appeared to him to be the street from which he had collected the appellant on 22 June 1993: again, he could not say "100 per cent". (AB 515)

23 A little later in his evidence, Constable Sandilands said that when the appellant got into the car on 22 June:

"He sat down in the passenger seat, reached over his shoulder and grabbed the seat belt with his left hand, pulled it across, plugged it in down by his right hip. When he did he ran his hand back up the seat belt where it came to his shoulder and said, 'I've stuffed my back or stuffed my shoulder playing cricket' or words to that effect. I don't recall exactly what it was. He didn't make a big deal of it. He just said, 'I've stuffed my back or stuffed my shoulder playing cricket' and sat back in the car and we drove off." (AB 519)

24 Cross-examined, Constable Sandilands said that in an attempt to refresh his memory he had returned to what he thought was the street where he had collected the appellant on 22 June. He did so in daylight hours, although, of course, he had collected the appellant after dark.

25 Constable Sandilands said he had located the street by driving round the Welshpool area, because "I knew it was in that particular area that I went on [sic to] that night". He selected President Street, Welshpool because "it looked familiar".

26 Constable Sandilands described the street from which he said he had collected the appellant on 22 June 1993. He also made a diagram (Exhibit 21).

27 Counsel for the appellant then sought to put to Constable Sandilands a series of photographs of President Street which had been taken a few weeks earlier, after the trial had been adjourned part-heard.

28 Counsel for the first, second and third defendants objected to the photographs being put to Constable Sandilands. He submitted that they were potentially misleading, having been taken five years after the event. The Commissioner upheld the objection on that basis. He refused to allow the appellant's counsel to put the photographs to Constable Sandilands.

29 A little later in the cross-examination, counsel for the appellant informed the Commissioner that he had proposed to put to Constable Sandilands some recent photographs of Esther Street, Belmont where the Strikers indoor cricket centre is located. This was for the purpose of enabling him to refresh his memory "and it may well be on the basis of these photographs, his position will change....".

30 Given the Commissioner's previous ruling, counsel foreshadowed an application to re-call the appellant, who had taken the photographs, to give evidence about the configuration of Esther Street. Again, counsel for the first, second and third defendants objected, and on similar grounds.

31 The Commissioner accepted that the matter under consideration was "a key evidentiary issue". Clearly it was: at least at that stage of the trial. If Constable Sandilands' evidence about collecting the appellant from a street which resembled President Street in Welshpool could be controverted by proving that the configuration of that street was significantly different from Esther Street, Belmont, doubt might be cast also on his evidence about the admission then said to have been made by the appellant as to injuring his neck or back.

32 The Commissioner went on to rule that the photographs of Esther Street fell into a similar category as those of President Street and could not be put. He said also that he would be inclined not to accede to a request to recall the appellant. When asked to give reasons, the Commissioner said:

"It seems to me that this is a matter that was raised during the course of the evidence of the plaintiff on the previous occasion. If I was to accede to a request to have witnesses recalled to give evidence on matters that have already been the subject of evidence, then I would be recalling people perhaps frequently to the point of delaying the conclusion of the hearing.

The hearing has already been part heard on one occasion and I'm not going to engage in any conduct that may put it in a similar situation again but in any event, that's not the reason. The matter has already been the subject of some evidence. If it was going to be pursued, there was an earlier time to do it rather than now."

33 The application to recall the appellant for this purpose was renewed later in the trial, as part of an application to call several additional witnesses. The application was again opposed: and again the Commissioner dismissed it. In dealing with this aspect, he said:

"The transcript will show ... that the plaintiff didn't make any clear concession that Strikers was in President Street. He agreed that it could be. That's the extent of it. In any event, the point is that the location of Strikers was an evidentiary point during the cross-examination of the plaintiff. It's my view that that having been the subject of evidence, the matter was raised, the plaintiff's case was closed subsequent to the matter being raised and my view is that we have reached a stage where that's the end of it."

34 The Commissioner thus exercised his discretion, as he had previously, on the basis that the issue about the location of Strikers had been raised in cross-examination of the appellant, who had closed his case without calling further evidence.

35 In my view, the Commissioner's ruling ignored the fact that when the appellant was cross-examined, he did not know it would be the defendants' case that he had made an admission about injuring himself while playing indoor cricket on 22 June 1993 at the place from which Constable Sandilands collected him. As I have noted, the amended defence alleged only the fact of an injury.

36 The significance of the appellant's cross-examination about the location of Strikers did not emerge until Constable Sandilands gave evidence. The appellant had been misled into saying that he might have been playing at a centre in President Street, Welshpool, which on his evidence, he could not have been. In these circumstances, the appellant's application to give further evidence about the location of Strikers was not, strictly, an application to re-open his case, but to call evidence in rebuttal in relation to an issue which had taken him by surprise.

37 In my view, the Commissioner erred in failing to appreciate this. And in my view he erred also in failing to address the question of prejudice; there being no evidence or suggestion from any of the defendants that they would be prejudiced if additional evidence were given. It follows, I think, that the Commissioner's discretion miscarried. But that is not the end of the matter. The question then arises: did the appellant thereby suffer an injustice? That is a question which must be considered in the light of the Commissioner's findings as a whole. I shall return to it later in these reasons.

38 In order to understand the second complaint about the Commissioner's refusal to allow the appellant to re-open his case, it is necessary to explain that on 10 April 1995 the appellant was involved in an accident while driving a police vehicle. Another vehicle, being driven at high speed, collided with the left rear corner of the police vehicle causing it to spin round. The left rear wheel of the police vehicle was damaged to such an extent that (so the appellant believed) it was written off.

39 By a late amendment to their defence, after the trial had commenced, the first, second and third defendants contended that if (which they did not admit) the appellant had suffered any injury, this had occurred as a result of the accident on 10 April 1995.

40 The appellant gave evidence about that accident at the conclusion of his examination-in-chief, after his counsel had been prompted by the Commissioner. The appellant said that the accident had not aggravated his existing injury in any way. He went on to say that he had visited a physiotherapist on the morning of 10 April, before the accident. He visited the physiotherapist again on 11 April: not as a result of the accident, but by prior arrangement.

41 The appellant said also that when he visited the physiotherapist on 11 April, he told him about the accident, being concerned that he may have sustained further injury to his neck. The appellant then started to give evidence about the opinion expressed by the physiotherapist: apparently to the effect that the appellant's neck flexibility and head rotation had improved since the previous day.

42 The appellant was stopped by the Commissioner, who asked if the physiotherapist would be giving evidence. Counsel replied that he would try to make the necessary arrangements, pointing out that the difficulty had arisen because of the late amendment of the defence (AB 249).

43 This exchange took place on the second day of the trial. On the morning of the fifth day, counsel for the appellant informed the Commissioner that he wished to call the physiotherapist, but that he was unavailable, being then in Melbourne. Later that day, having called the last of his available witnesses, counsel for the appellant sought leave to call the physiotherapist at some later stage.

44 The Commissioner declined to give leave. He said he accepted that counsel had not known about the April 1995 accident until the defence was amended. However, he said that the accident "of the sort that has been described could reasonably have been expected by a person to have been relevant to a case such as this". The Commissioner said it seemed to him that there had been a failure "by others" to inform counsel; and that in the circumstances he was not prepared to give leave (AB 1160).

45 The application to call the physiotherapist was renewed on 17 July, which was, as the Commissioner put it, "the second-last day of the resumed hearing". It was submitted by counsel for the appellant that there could be no prejudice to the defendants if the physiotherapist's evidence was given (AB 1313).

46 The Commissioner declined to depart from his earlier ruling. The substance of his reason appears to be that it was too late in the trial for the matter to be raised again (AB 1315).

47 Counsel for the appellant submits to the Court that the Commissioner erred in exercising his discretion to exclude the physiotherapist's evidence. I agree: but in the end, nothing turns on it.

48 I agree, because I consider that the accident of April 1995 was irrelevant until the first, second and third defendants amended their pleadings on the first day of the trial. That being so, it was not incumbent on the appellant or his legal advisers to have made any arrangements to call the physiotherapist.

49 It would no doubt have been prudent for the appellant to have told his legal advisers about the 1995 accident. If his medical advice or his own observation was that the accident had caused his current disability, it would have been fraudulent to pursue his claim against the defendants. However, that was not the case. As the Commissioner found, the accident did not affect the appellant to any significant extent. If he had told his legal advisers about the accident they might well have said "don't worry: it is not relevant".

50 But once the defence had been amended, the accident did become relevant. The appellant should therefore have been allowed to call such evidence as he wished in order to prove that it had not caused or contributed to his symptoms.

51 That evidence could properly have included the physiotherapist's testimony. It was quite fortuitous that he had seen the appellant shortly before and shortly after the accident. Although not qualified to give medical evidence, the physiotherapist was uniquely qualified to give evidence about the effect, if any, of the accident on the appellant's pre-existing symptoms. Further, the evidence could have been given without prejudicing the defendants in any relevant sense. The trial was adjourned part-heard on two occasions. There would therefore have been an opportunity to call the physiotherapist, whose evidence would probably not have been extensive.

52 It seems that the Commissioner did not consider these matters, or did not give them sufficient weight. I therefore consider that his discretion miscarried.

53 However, nothing turns on this point because, in the end, the Commissioner discounted the April 1995 accident. He said in his judgment:

"While the motor vehicle accident on 10 April 1995 was a significant event it probably only exacerbated the plaintiff's symptoms for some period of time. I am satisfied that he continued to experience the same sort of symptoms after 10 April 1995 as he did before then. I find that his spinal condition after this accident and now is unlikely to be solely related to this accident."

54 It will be convenient to deal next with the grounds of appeal in which it is contended that the Commissioner's findings on credibility are flawed.

55 The Commissioner dealt with the appellant's credibility by first making some general observations:

"Having considered the plaintiff's evidence and the way he gave it and the evidence as a whole and the way it was given I conclude that the plaintiff was not a reliable witness. I am of the view that he was inventive, prone to exaggerate and indifferent of the truth. This could only have been to advance his claim."

56 The Commissioner then went on to say that it was essential for him to set out his reasons for reaching that view. He did so in a number of points, which were not set out in any order of priority: "In the final analysis it is the combined weight of the totality of all these points when assessed with the balance of the evidence that is important".

57 The first of these points concerned the appellant's evidence that in the course of the pursuit, the police vehicle had executed a sharp left-hand turn into Hamilton Street, Welshpool at its intersection with Welshpool Road: and that the appellant had then been thrown very hard against the left-hand passenger door. The Commissioner said that this was contrary to "common experience".

58 In order to understand the appellant's evidence, it is necessary to explain the configuration of the intersection. It will be convenient to refer to a sketch which I have prepared from the photographs given in evidence (Exhibit 1.1 to 1.6).

59 The appellant's evidence was that the pursuit vehicle had been following the Commodore along Welshpool Road, travelling east. The Commodore then executed a U-turn and drove back towards the police vehicle as if to ram it. The police vehicle then executed a U-turn in order to continue the pursuit. As a result, both vehicles were travelling west along Welshpool Road.

60 The Commodore then executed another U-turn and again drove towards the police vehicle as if to ram it. The police vehicle executed a second U-turn in order to continue the pursuit which then continued in an easterly direction along Welshpool Road.

61 As will be seen from the sketch, there is a long traffic island at the intersection of Welshpool Road with Kewdale Road and Hamilton Street. This island (which might also be described as a median strip) prevents a vehicle travelling east on Welshpool Road from turning right into Hamilton Street.

62 It was the appellant's evidence that the Commodore approached the median strip on the wrong side of the road and turned right into Hamilton Street. He said that the police vehicle, being on the correct side of the road and close behind the Commodore, drove to the left of the median strip and immediately executed a U-turn at the end of it. He said the police vehicle then "fish-tailed" back towards the point at which Hamilton Street joined Welshpool Road and executed a sharp left-hand turn into Hamilton Street so that the left-hand wheels of the police vehicle passed over the spur of kerb shown in the sketch.

63 Thus, on the appellant's evidence, the chase involved three U-turns down to this point.

64 The evidence of the first defendant, Constable Sandilands, who had been driving the police vehicle, was that he followed the path of the Commodore. That is, he turned right into Hamilton Street from the wrong side of Welshpool Road.

65 Both witnesses were cross-examined on their evidence and maintained that what they had said was true.

66 The only other relevant witness was Constable Peter Gilmore, who had been driving another police vehicle. In his examination-in-chief he said that Constable Sandilands' version was correct: that the police vehicle had followed the track of the Commodore, passing to the right of the median strip and turning right into Hamilton Street. However, under cross-examination, Constable Gilmore accepted that the appellant's version was "a possibility". (AB 841)

67 The conflict of evidence between the appellant and Constable Sandilands was important. As the sketch shows, a vehicle turning left into Hamilton Street in the way described by the appellant, would be very likely to drive over the spur of the kerb. However, a vehicle entering Hamilton Street by turning right from the wrong side of the median strip on Welshpool Road would follow the curve of Hamilton Street (albeit in the wrong direction) and would be unlikely to cross the kerb.

68 The Commissioner did not deal directly with this conflict of evidence. As I have noted, he referred to the appellant's evidence about the sharp left-hand turn made by the police vehicle into Hamilton Street and his evidence that he had been thrown very hard against the door. As the Commissioner said, this "could only have been a reference to the front passenger side door which would have been immediately to his left". In saying that the description given by the appellant was contrary to "common experience", the Commissioner was presumably referring to the centrifugal force which would cause a passenger in a car turning sharply to the left, to move away from the left-hand side door and not towards it.

69 However, it was, of course, the appellant's evidence that as the police vehicle executed the left-hand turn, the left wheels went over the kerb spur to which I have referred. This combination of forces would, I think, be outside "common experience". It would therefore be difficult to draw any conclusion about the likely motion of the appellant's body by applying common experience to the evidence which he gave.

70 The Commissioner then referred to the appellant's evidence that "the whole left hand side of the car went up in the air". (AB 171) The Commissioner said of it that the evidence created an impression of a violent incident but that:

"It is inconsistent with the evidence of Dr Silver which I prefer and accept that the [appellant] told him that the pursuit car did not leave the road or become airborne when it went over the traffic island and cambers on cross-roads." (AB 90)

This was a reference to Dr John Hodgeson Silver, a medical practitioner who was called as an expert witness for the first, second and third defendants.

71 Dr Silver is an occupational physician who was requested by the Crown Solicitor to review the appellant. He did so on 19 June 1997 and immediately prepared a report. (AB 1005 - 1012) In the report Dr Silver gave a short account of the pursuit which he had taken from the appellant. He said:

"The chase involved the pursuit car going over a gutter on the central dividing island on the road, and over cambers on cross roads, but he said that the pursuit car did not leave the road or become airborne when negotiating these obstacles."

72 In his examination-in-chief, Dr Silver said he did not recall whether the appellant had volunteered that the police vehicle had not become airborne or whether he had asked that question. Dr Silver said he presumed that he had asked because he had the impression of "a San Francisco car chase", and "wanted to get a bit of a picture in my mind as to what this car chase was about". (AB 407)

73 Dr Silver dictated his report shortly after he had reviewed the appellant. It was based on notes he made at the time. Dr Silver then destroyed his notes, following his usual practice.

74 It is not clear what had been said by the appellant to Dr Silver which caused him to refer to the pursuit car "going over a gutter on the central dividing island on the road". It does not make sense. Indeed, the concept of a gutter on a central dividing island is so curious that one wonders whether there was some mistranscription by Dr Silver of his note or by the person who typed the dictated version.

75 However, the appellant was not cross-examined about the account of the pursuit which he had given to Dr Silver. That being so, I do not think it can be said with any degree of confidence that there was an inconsistency between the evidence of the appellant and that of Dr Silver. It was not the appellant's case that the police vehicle had left the road or become airborne in a way which might be expected from the dramatic portrayal of a San Francisco car chase. Indeed, it was not the appellant's evidence that the police vehicle had left the road or become airborne at all. He said only that the left side wheels of the police vehicle went up in the air.

76 The Commissioner went on in his reasons to say that the appellant had not mentioned this incident in the history which he gave to Mr Thomas.

77 This is a reference to Mr Geoffrey Wayne Thomas, a consultant neurosurgeon whom the appellant had consulted on a number of occasions. Mr Thomas prepared a report on 22 July 1997. (AB 974-6)

78 In his report, Mr Thomas referred to the appellant having been "jostled and thrown about" inside the police vehicle during the pursuit. He went on to refer to the effect of "the jostling and bouncing around".

79 In the course of cross-examination by counsel for the first, second and third defendants, Mr Thomas said that it is his practice to rely on what a patient tells him about the history of a matter. He agreed that he does not "cross-examine the patient about what he ... thinks the cause is" (AB 370).

80 On any view, there was far more involved in the pursuit than the brief summary contained in three lines of Mr Thomas' report. However, it is clear from the report and from Mr Thomas' evidence, that he was not so much concerned with the cause of the appellant's condition but with the prognosis.

81 Mr Thomas was not asked in cross-examination about the history given to him by the appellant: nor was the appellant cross-examined about that matter.

82 In all these circumstances, I do not think any significance can be attached to the fact that the appellant did not mention the kerb-mounting incident in the history he gave to Mr Thomas.

83 The Commissioner went on in his reasons to refer to the fact that the appellant had made no mention of the police vehicle driving over the kerb on entering Hamilton Street, either in a statutory declaration made on 4 August 1993 before an SGIO investigator or in an undated statement which he had prepared for Constable Sandilands to sign.

84 This was a valid point which in my view the Commissioner was entitled to take into account.

85 The Commissioner concluded this section of his reasons by referring to the proper construction to be given to par 15(e) of the appellant's further amended statement of claim. This paragraph contained an amendment made on the first day of the trial. The appellant had alleged in par 15 that he had sustained injuries as a result of the negligence of the driver of the stolen Commodore. Particulars were given which included par 15(e) in the following terms:

"The driver of the [Commodore] drove on the wrong side of a carriageway divided by a concrete median strip which the driver of the [Commodore] knew, or ought reasonable [sic] to have known, the driver of the [police vehicle] to enable the continuation of the pursuit would need to drive over [the concrete median strip]".

86 The "concrete median strip" referred to in this most inelegant pleading must be that which divided Welshpool Road at its intersection with Kewdale Road and Hamilton Street. As I have said, it was common ground that the Commodore was driven on the wrong side of the carriageway at that point immediately before turning right into Hamilton Street.

87 The pleading does not allege that the police vehicle was in fact driven over the median strip: only that the driver of the Commodore should have foreseen that the police vehicle would have to drive over the median strip in order to continue the chase. It was not, however, the appellant's case that the police vehicle was driven in this way. He said that the police vehicle executed a U-turn at the eastern end of the median strip before turning left into Hamilton Street.

88 The particulars of negligence of the first defendant, pleaded in par 9 of the statement of claim, contained an allegation that Constable Sandilands had driven at excessive speed "over a concrete median strip". It is not clear whether that is the same median strip referred to in par 15(e) or whether it is a reference to the spur of kerb on the traffic island at the mouth of Hamilton Street. If the latter, the description seems somewhat inappropriate.

89 The Commissioner, while acknowledging that there was scope for argument on the construction point, proceeded on the basis that the particular of negligence alleged that the police vehicle was driven over the traffic island in the middle of Hamilton Street on the south side of the intersection. That is to say, that the vehicle was driven over the spur of kerb in the manner described by the appellant in his evidence.

90 The Commissioner went on to say that the allegation was not pleaded when proceedings were commenced in October 1996 and that it was not included in the pleadings until July 1997. The Commissioner went on:

"[The appellant] gave evidence that he believed he was able to give instructions with precision to his solicitors who commenced the proceedings on his behalf. He said that he fully instructed them. [The appellant's] explanation that this incident was not included in the pleadings until July 1997 because it had not seemed relevant prior to that lacks substance and is not credible." (AB 91)

91 This was a reference to cross-examination of the appellant by counsel for the fourth defendant. Counsel asked:

"Q. Why was it that it wasn't until you amended your statement of claim by an order of 28 July 1997 that you complained about the first defendant driving over a concrete median strip?

A. Because it hadn't seemed relevant prior to that." (AB 330)

92 It was then put to the appellant that this had not happened: that is, that the police vehicle had not driven over a median strip. The appellant said that it had. Since it had never been the appellant's case that Constable Sandilands had driven over a median strip separating two carriageways, the appellant (and indeed counsel) must be taken to have been referring to the spur of the kerb where Hamilton Street met Welshpool Road.

93 That being so, it was, I think, proper for the Commissioner to have proceeded on the basis that that was the substance of the allegation.

94 Indeed, the Commissioner may have been taking a somewhat charitable view. I think it likely that the pleadings were intended to contain an allegation that the police vehicle drove over the median strip opposite the entrance to Hamilton Street rather than over the spur of kerb to which I have referred above. If that was the true construction, then the appellant could no doubt have been criticised for the fact that his evidence at trial was quite different.

95 During the hearing of the appeal, it was submitted by counsel for the appellant that the failure to plead the kerb mounting incident until 8 August 1997 (which I take to be a reference to July 1997) was no more telling than the late pleading by the first defendant that the appellant had been injured in an indoor cricket match. That amendment was not made until 21 November 1997.

96 I do not accept the submission. It seems to me that quite different considerations apply. The failure to plead the cricket injury may well be explicable on the basis that it was not until after Dr Silver produced his report on 19 June 1997, that the first defendant was in a position to allege that the cricket injury was the probable cause of the appellant's symptoms.

97 Although the Commissioner did not say so in this part of his reasons, it is clear that he did not accept the appellant's evidence that the police vehicle had driven over the kerb in the course of executing a sharp left turn into Hamilton Street. He made that express finding later in his reasons.

98 As I have noted above, the configuration of the road is such that a vehicle turning left at speed from Welshpool Road into the exit of Hamilton Street would be very likely to drive over the kerb. Although he made no reference to Constable Sandilands' evidence that he had turned right into Hamilton Street, the Commissioner must, I think, have accepted it. In dealing with the second credibility point, the Commissioner did unequivocally accept Constable Sandilands' evidence in preference to that given by the appellant.

99 The second credibility point related to the distance between the police vehicle and the Commodore during the pursuit. Put shortly, it was the appellant's evidence that the police vehicle was following very close behind the Commodore when it executed the two U-turns which it made before attempting to ram the police vehicle. Constable Sandilands gave a different account. He said that the police vehicle was about 100 metres behind the Commodore before it executed the first U-turn and about 150 metres behind when the Commodore executed the second U-turn.

100 It was common ground that the brake lights on the Commodore were not working. That was the reason advanced by Constable Sandilands for maintaining a reasonable distance between the police vehicle and the Commodore.

"I prefer and accept the first defendant's evidence that it took him about a second to realise when the Commodore was under brakes because its brake lights were not working. I also prefer and accept the first defendant's evidence that because the brake lights on the Commodore were not working he increased the distance between the pursuit vehicle and the Commodore and kept it to about 100 metres on Welshpool Road before the first U-turn. I also prefer and accept the first defendant's evidence that the pursuit vehicle was about 150 metres behind the Commodore when the Commodore commenced its second U-turn." (AB 92)

In my view, the Commissioner was entitled to accept that evidence. Indeed, it seems to me that if the police vehicle had been as close behind the Commodore as asserted by the appellant, it would have been impossible for the Commodore to have executed the U-turn and then driven back towards the police vehicle as if to ram it.

102 The Commissioner made no reference to the conflict of evidence between the appellant and Constable Sandilands in relation to the distance between the two vehicles as they approached the intersection of Welshpool Road and Hamilton Street.

103 The substance of the appellant's evidence was that the police vehicle was following close behind the Commodore, although the Commodore was in the wrong lane. The impression I have from the appellant's evidence is that when the Commodore turned right into Hamilton Street, the police vehicle was so close behind it as to be unable to cross into the wrong lane because of the proximity of the police vehicle to the concrete median strip. Hence the need, on the appellant's case, for Constable Sandilands to drive to the end of the median strip and execute a third U-turn before turning sharp left into Hamilton Street across the spur of concrete kerb.

104 However, if Constable Sandilands' evidence was to be preferred, he was driving the police vehicle a sufficient distance behind the Commodore to enable him to swing across to the wrong side of Welshpool Road and to the right of the median strip before turning right into Hamilton Street without encroaching on the kerb.

105 Given the Commissioner's preference for Constable Sandilands' evidence in relation to the distance between the two vehicles before the first and second U-turns, I infer that the Commissioner accepted his evidence also in relation to the distance thereafter. This is consistent with the Commissioner's rejection of the appellant's evidence about the police vehicle driving over the kerb on turning left into Hamilton Street.

106 The Commissioner's third credibility point was as follows:

"The [appellant] failed to disclose information to medical practitioners that he must have been aware was potentially material to their consideration of his condition and therefore his claim.

The history [the appellant] gave to Mr Thomas that he had no prior neck problems was wrong. He conceded to Dr Silver that he had experienced neck pain prior to the pursuit but would not elaborate on it. He did not tell Mr Thomas and Dr Silver of his motor vehicle accident on 10 April 1995. Whether or not this accident is the cause of his current problems is not the point. The circumstances of the accident, the fact that his neck was placed in a collar at the scene and he was taken to hospital in an ambulance and that thereafter he required physiotherapy made it an incident that should have been mentioned and could reasonably [be] expected to have been mentioned." (AB 93 - 94)

107 The criticism of the appellant failing to mention the 10 April 1995 accident is, I think, unfair given that:

1. the Commissioner found the accident to be irrelevant; and

2. the Commissioner refused to allow the appellant's physiotherapist to be called who could have given evidence to the effect that the accident had no effect on the appellant's symptoms.

"I find that the [appellant] did injure himself at indoor cricket on 22 June 1993. I will refer to this in more detail later. The [appellant's] failure to mention this to any of Dr Isbel, Mr Thomas and Dr Silver is the most serious non-disclosure of all." (AB 94)

109 Later in his reasons the Commissioner referred to what he described as "a key finding" that the appellant had sustained an injury during the course of an indoor cricket game on the evening of Tuesday 22 June 1993. The Commissioner said:

"I prefer and accept the evidence of the first defendant to that of [the appellant] on this issue. I also accept and prefer the evidence of both of Detective Sergeant Harmer and Detective Sergeant Cross to that of [the appellant] on this issue. Their evidence is not identical with the evidence of the first defendant but is corroborative of the substance of it." (AB 106)

110 I have referred above to the evidence given by the first defendant, Constable Sandilands to the effect that when the appellant got into the police vehicle on 22 June he told Constable Sandilands:

"... 'I've stuffed my back or stuffed my shoulder playing cricket' or words to that effect." (AB 519)

111 Detective Sergeant Harmer gave evidence about a conversation he had with the appellant sometime after 26 June 1993, which related to the appellant "having injured himself playing indoor cricket". Sergeant Harmer said that he had not asked the appellant "any great questions about how it actually happened but he inferred it happened while playing indoor cricket". (AB 866 - 867)

112 It was clear from Sergeant Harmer's evidence in cross-examination that to a certain extent at least, the source of his knowledge about the cricket injury said to have been suffered by the appellant was Constable Sandilands. He could not recall precisely what Constable Sandilands had told him: but whatever it was, prompted him (Sergeant Harmer) to speak to the appellant about the matter. (AB 878)

113 Detective Sergeant Cross gave evidence that he recalled speaking to the appellant about his indoor cricket. He believed the conversation could have taken place during the week commencing about 28 June 1993. He said the appellant told him that he had hurt his back playing indoor cricket. (AB 787 - 788)

114 Cross-examined, Sergeant Cross said he recalled the appellant demonstrating that he had hurt his lower back. He could not recall whether the appellant indicated the left, right or middle of his back.

115 The appellant, in cross-examination, denied telling Sergeant Harmer that he had hurt his back playing cricket (AB 267). The appellant denied also that he had told Sergeant Cross that he had hurt his back playing indoor cricket at about the time of the pursuit. (AB 304)

116 Cross-examining counsel told the Commissioner that his instructions were that the conversation between Sergeant Cross and the appellant took place "at about the time of the high speed chase". However, when Sergeant Cross gave evidence, he said he thought the conversation took place in the week commencing 28 June 1993.

117 In his reasons, the Commissioner referred to evidence relating to the appellant's cricketing activities on or about 22 June 1993. In that context, the Commissioner referred to his refusal to grant leave to the appellant to re-open his case to call evidence about the location of the Strikers Indoor Cricket Centre. In dealing with that matter, the Commissioner said:

"Even if the first defendant's recollection in relation to the location of the cricket centre was shown to be wrong in any way then that would not necessarily mean his evidence of picking up [the appellant] from indoor cricket should be rejected." (AB 107)

This is undoubtedly correct. Furthermore, the Commissioner had the opportunity of assessing Constable Sandilands' credibility during the course of a lengthy cross-examination.

118 In any event, the Commissioner was clearly entitled to accept the evidence of Sergeants Harmer and Cross about the admission which the appellant made to them concerning a cricket injury.

119 Once it is accepted that the Commissioner's finding must stand that the appellant suffered some kind of injury playing indoor cricket, the question of causation becomes important.

120 In dealing with that question, the Commissioner referred to the appellant's pre-existing spinal condition. This was the subject of evidence given as part of the appellant's case by Dr Scott Owen Isbel, a sports physician. Dr Isbel explained the appellant's condition as being pain arising from the lower aspect of his cervical spine and the upper aspect of his thoracic spine. He went on to describe the appellant's symptoms. He said that the pain experienced by the appellant arose from a combination of inflammation from the facet joints in the lower cervical spine and irritation of the nerve roots as they exit the spine and travel into the appellant's arm. The cause of the irritation was a combination of osteophytic spurs growing into the foramina, which is the tunnel through which the nerve passes the spinal cord into the arm; and associated inflammation around the area arising from both the joints themselves and the tissue within the spinal canal. AB 379)

121 Dr Isbel went on to say that the spurs were a result of "wear and tear change in the spine". That was something which had occurred over a period of time. It was not possible to say with any degree of precision how long the spurs had been present. However, Dr Isbel expected that it would have been a period of a few years.

122 Dr Isbel was then asked what would cause the inflammation. He said it could be caused by a number of different processes, of which trauma was one. He said he did not believe the appellant suffered from an inflammatory joint condition: he believed the inflammation in the appellant's neck was a result of the trauma sustained in the pursuit as it had been reported to Dr Isbel by the appellant.

123 Dr Isbel was then asked whether he was able to form any view as to whether the appellant's symptoms were more likely to have been caused by the pursuit or by a cricket injury. Dr Isbel said that it would depend on the nature of the injury:

"Certainly, any degree of significant trauma to the head or neck region or any rapid accelerating movements to the neck would produce the symptoms. In the natural course of the game of indoor cricket I wouldn't consider that anything in the course of a normal game would cause problems. It would take an actual fall onto the head and shoulder region or a direct blow to the head to actually produce enough force to cause the symptoms." (AB 380)

"This opinion of Dr Isbel carries no weight because it is subject to [the appellant] not having sustained an injury when playing indoor cricket. Putting this aside, if [the appellant] seeks to rely on this evidence to establish that trauma was necessary to cause [him] to become symptomatic then I refer to the evidence of Mr Thomas, which I accept, that bone spurs tend to slowly get worse as time goes on and ultimately many patients, though not all, will eventually become symptomatic of such a bone spur even without any injury. I also note that [the appellant's] symptoms are now predominantly on the left side whereas they were initially on the right side. This is consistent with [the appellant's] bone spurs getting worse and causing compression on both sides.

I think it is possible but unlikely that [the appellant's] symptoms in June 1993 and now are solely related to a natural progression of his degenerative condition. To put it any higher would ignore the fact that he was injured in a game of indoor cricket on 22 June 1993 and also the timing of his first visit to Dr Isbel on 10 July 1993." (AB 109)

125 The Commissioner then went on to dismiss the motor vehicle accident of 10 April 1995 as being substantially irrelevant. The Commissioner continued that it then remained for him to deal with the appellant's cricket injury and the pursuit. He said:

"Given my findings that [the appellant] complained to the first defendant that he injured himself at cricket, the substance of his complaints, Dr Silver's evidence that such complaints were consistent with the [appellant] having sustained a neck injury at cricket and my rejection of key facts alleged by the [appellant] in his version of the pursuit, I accept the opinion expressed by Dr Silver that the [appellant's] cricket injury is the probable precipitating cause of his symptoms and that the pursuit is an unlikely one." (AB 110)

126 Dr Silver's opinion was expressed somewhat cautiously because, of course, there was no evidence as to the exact nature of the cricket injury which the Commissioner found the appellant had sustained..

127 It will be recalled that Dr Silver had examined the appellant at the request of the Crown Solicitor. In the letter of instruction to Dr Silver, the Assistant Crown Solicitor wrote:

"We have evidence that [the appellant] injured himself two days prior to the high speed pursuit playing indoor cricket. In the two days prior to the high speed pursuit he complained continuously about a sore back and neck rotating his left arm and shoulder at the time and he attributed this to indoor cricket, saying it hurt a lot at the time he sustained it." (AB 1002)

Dr Silver was requested to question the appellant about this matter.

128 In his report, Dr Silver said that the appellant:

"... specifically denied any sporting injuries of any sort, and, also, he specifically denied hurting his neck or shoulder a few days, or at any time, prior to being involved in [the pursuit]". (AB 1006)

129 Later in his report, after answering some specific questions, Dr Silver said:

"It seems to me that your dilemma is that of cause and effect of his symptoms of his cervical spondylosis. This, unfortunately, is not clear, but, if the facts of a sporting injury some two days prior to the high speed police chase are substantiated, it is my view that this would be the probable precipitating cause of these symptoms, and that the car chase is an unlikely one.

If there was no sporting injury, as he states, one would have to give him the benefit of the doubt in regard to having his symptoms precipitated by the chase, but, it is my feeling that, as exciting as the car chase certainly was, that from a medical viewpoint, it was a rather innocuous incident." (AB 1011 - 1012)

130 Dr Silver expanded on his opinion in a series of discursive answers to questions put to him in cross-examination by the appellant's counsel. He then said that if the appellant had been completely asymptomatic until the pursuit, it may have been possible to say that it was the pursuit which precipitated his symptoms even though that had not caused his underlying degenerative spine condition.

131 Dr Silver said he thought that was the case when he examined the appellant because he had no information which confirmed the cricket injury. For that reason he thought the appellant should be given the benefit of the doubt. He went on:

"I still don't know whether he hurt himself playing cricket or not. I have no idea, but I'm saying that if he did hurt himself playing cricket, on the balance of probabilities it would be more likely that that would be the more traumatic incident than the car chase." (AB 435)

132 The appellant contends in par 39 of his grounds of appeal that the finding of the Commissioner that he preferred the evidence of Dr Silver to that of Dr Isbel was "against the evidence and the weight of the evidence, and perverse" having regard to a number of matters. I do not accept that contention. The Commissioner expressed his "clear view that Dr Silver was an impressive witness". That was a view which the Commissioner was entitled to form.

133 It is true that Dr Silver did not know the nature of the injury which the appellant had sustained while playing cricket. However, the gravamen of his opinion was that if, after playing indoor cricket, the appellant complained that he had injured himself, then, given the nature of the sport, it is more likely that the symptoms resulted from a more significant trauma than the pursuit which Dr Silver regarded as "a rather innocuous incident".

134 The Commissioner referred to this comment in his reasons. He said:

"Dr Silver's evidence that from a medical viewpoint the pursuit was a rather innocuous incident is consistent with my findings that the left wheels of the pursuit vehicle did not go over the traffic island at Hamilton Street, that the first defendant's evidence on his manoeuvres to avoid the pursuit vehicle being rammed should be preferred, that the first defendant drive the pursuit vehicle over the fire break at speeds of no greater than 60 kms per hour and that there is a lack of reliable evidence to establish that the condition of the fire break was such that driving on it at speeds of 60 kms per hour gave rise to a real possibility of spinal injury.

In the final analysis I am not satisfied on balance that any particular incident or combination of incidents within the pursuit caused or contributed towards an injury to the [appellant] which in turn caused or contributed towards his symptomatology." (AB 110 - 111)

135 There was unquestionably evidence before the Commissioner which he was entitled to accept in making the findings of fact which he summarised in that passage. Although there was no evidence as to the nature or extent of the cricket injury which the Commissioner found the appellant had sustained on 22 June 1993, it was not necessary for the Commissioner to make any finding in order to reach his conclusion. In considering the question of causation, the Commissioner was entitled to take into account the fact that the appellant had complained about his symptoms after playing cricket and that he had not disclosed this to any medical practitioner who had examined him: particularly Dr Silver who had asked the appellant specifically whether he had suffered a sporting injury. In these circumstances, the Commissioner was entitled to conclude that the appellant had not proved, on the balance of probabilities, that his symptoms were caused by the pursuit.

136 In reaching this conclusion, it is not necessary to consider the remaining thirteen credibility points listed by the Commissioner. That is because they become irrelevant once it is accepted that the Commissioner was entitled to find against the appellant on the question of causation.

137 However, for completeness, I shall deal with them in the same order as the Commissioner did, commencing with point 4.

138 Although the Commissioner did not accept the appellant's evidence that the April 1995 accident had not aggravated his existing injury in any way, this becomes largely irrelevant because of the Commissioner's conclusion that the accident had little effect on the appellant's symptoms. In any event, the Commissioner was entitled to reject the appellant's evidence. It is submitted that the evidence was uncontradicted. But that does not mean the Commissioner was obliged to accept it.

139 The Commissioner did not accept the appellant's evidence about the injury to his neck which he sustained in January 1989 when he fell into a swimming pool. The appellant said in evidence that he would not describe it as a whiplash: whereas in a report written on the day of the accident he did describe the injury in those terms.

140 In his evidence, the appellant sought to explain the inconsistency. The Commissioner said his explanations were neither "satisfactory or credible.

141 The appellant submits that the Commissioner drew "a long bow" in making an adverse credibility finding on an inconsistency between a contemporaneous statement and one made after an interval of nine years.

142 Again, that was a matter for the Commissioner. He saw and heard the appellant give his evidence: and he did not accept the explanation.

143 The Commissioner did not accept the appellant's explanation about the delay in taking photographs of the traffic island at the intersection of Welshpool Road and Hamilton Street. That was a matter for the Commissioner.

144 Then it is contended that the Commissioner was wrong not to accept photographs taken of the ground which the pursuit came to an end as evidence of those areas at the material time. It is said that at least in respect of one such photograph (Ex 1.14) the Commissioner had pre-determined the issue because of a remark he made when the photograph was tendered. However, it is clear from the Commissioner's reasons (AB 96) that he had not done so. The Commissioner reached his conclusion after taking all the relevant evidence into account: including that of Constable Gilmour, whose evidence the Commissioner preferred to that of the appellant.

145 The Commissioner was critical of the appellant for the way in which he changed his evidence about the reading on the speedometer of the police vehicle at the time of the pursuit. The appellant had said it was showing 220 kph. However, on being shown a photograph of the speedometer, which showed that the maximum possible reading was 200 kph, the appellant said that while he believed the speed to have been 220 kph, he accepted it may have been 200 kph. The Commissioner said this was an example of the appellant "even being indifferent of the true factual position on what is a relatively small point". (AB 97).

146 It is submitted that the concession made by the appellant showed only that he was wrong: not that he was indifferent to the truth. But again, that is not the way in which the Commissioner saw the evidence. Clearly, the appellant did not make a good impression on the Commissioner, and the appellant's credibility was a matter for him to assess.

147 The Commissioner accepted the evidence of Constable Wells that the front passenger seat of the police vehicle could be moved fully forward, notwithstanding the position of a screen box which the appellant said limited the forward movement of the seat.

148 It is submitted that the Commissioner failed to take account of the fact that the photographs of the seat and siren box did not show the microphone which, when attached to the siren box, constitutes an additional impediment.

149 However, the Commissioner, as he was entitled to, accepted the unequivocal evidence of Constable Sandilands that the siren box did not obstruct the movement of the passenger seat (AB 3/524). The relevance of the microphone does not appear to have been raised in evidence.

150 The Commissioner described as "incredible" the appellant's evidence that he had not been able to steady himself in the police vehicle by holding a grab handle with his left hand, because he had been holding the radio microphone in that hand. The Commissioner said it was:

"...unfortunate that a reasonably intelligent person who favoured his left hand [as the appellant did] would not have held the microphone in his right hand in the circumstances alleged by the [appellant] to have existed at the time." (AB 98)

151 The Commissioner went on to say that in any event, he preferred and accepted Dr Silver's evidence that the appellant had told him he held the grab handle with his left hand.

152 The appellant submits that his evidence about the way in which he attempted to steady himself during the pursuit was uncontradicted and should have been accepted. As I have already noted, a judge is not obliged to accept uncontradicted evidence which he or she does not believe. That appears to have been the position here, although the finding is, I think, open to challenge on the basis that the Commissioner's conclusion may have been based on his assessment of what "a reasonably intelligent person" would have done, rather than what the appellant actually did.

153 Further, I do not think it was open to the Commissioner to "prefer" Dr Silver's evidence. That was evidence of a prior inconsistent statement, which could be used to cast doubt on the appellant's credibility. However, it was not evidence of the fact in issue.

154 Although I have reservations about this finding, I do not regard it as significant. I appreciate that credibility issues are inter-related to a certain extent, but once it is accepted that the police vehicle did not mount the kerb in the way the appellant described, his evidence about steadying himself in the pursuit becomes much less important.

155 The Commissioner said he placed no weight on the appellant's evidence that shortly after the pursuit he told Constable Sandilands he thought he had pulled a muscle in his neck. The Commissioner said he took that view because the evidence had not been put to Mr Sandilands in cross-examination. The appellant submits, correctly, that there was no obligation to put the evidence to Mr Sandilands. However, the point is relatively trivial.

156 Of more significance is the view taken by the Commissioner about an inconsistency between the appellant's evidence, in which he said it was untrue that his neck injury had not become apparent until the next day, and a written report to his superior officer in which he said that was the case. That was a matter about which the Commissioner was entitled to take into account when considering the appellant's credibility.

157 The Commissioner was critical of the appellant for (as he thought) exaggerating the size of a hole in Centre Street. The appellant said in his evidence that the hole was 300 - 800mm deep. It is reasonably clear that the appellant meant to describe the hole as being 30 - 80mm deep. I accept, therefore, that the Commissioner's criticism was unwarranted.

158 According to the Commissioner, the appellant told Dr Silver that his photography had been a hobby while he was in the police force. The Commissioner said that "clearly, it was more than that", because the appellant had worked as a professional photographer at the time.

159 It is submitted that this finding is based on a misunderstanding of Dr Silver's evidence.

160 In Dr Silver's report to the Crown Solicitor, he said the appellant had studied photography "at night school as a hobby whilst in the police force". (AB 5/1006). That being so, I accept that the Commissioner's comment is unwarranted.

161 The Commissioner went on to refer to the appellant's evidence about his possible resignation from the police force.

162 The appellant was asked in cross-examination whether he had made up his mind early in 1994 to resign. He said he had not. The appellant was then shown a memorandum he had written to the officer-in-charge of Health Services on 27 May 1994, in which he had said it was his intention to resign "some time before the end of this year".

163 When this apparent inconsistency was put to the appellant in cross-examination, he said he did not regard an intention as a final decision. The Commissioner said the appellant's evidence was "unbelievable having regard to the words he used".

164 The appellant points to the penultimate paragraph of his memorandum, in which he referred to advice he had received to the effect that payments for medical treatment for injuries sustained while on duty:

This, it is submitted, indicates that resignation was only in contemplation. However, the final paragraph is in the following terms:

"I would appreciate it if you would inform me if this is correct or will my medical expenses continue to be met after my resignation". (AB 4/971)

This, I think manifests an intention to resign. It supports the Commissioner's view.

165 The Commissioner said the appellant had left him with "the clear understanding" from his evidence-in-chief that he paid his girlfriend $75 for each wedding at which she assisted by carrying camera equipment. The Commissioner said that when asked in cross-examination whether that was the understanding he intended the Commissioner to have "... he sought to evade the question".

166 The cross-examination arose from the appellant's income tax returns. He had claimed $500 payments to "subcontractors" to whom he paid "usually about $75 a wedding" to carry his equipment. However, there had been about 28 weddings in the relevant period; this equating to $17.85 per wedding.

167 The appellant sought to explain this inconsistency by saying that he did not pay his girlfriend when she assisted him. It was then put to the appellant that he had left the Commissioner with the impression that he required assistance which cost him $75 per wedding. The appellant replied that if he had said that, he had not intended to mislead the Commissioner. (AB 2/308-9)

168 In my view, the appellant's evidence-in-chief on this point was clear. He referred to the fact that because of his disability, he could not carry his photographic equipment. He was asked:

"So if you can't carry them what happens?---I have an assistant, either a friend of mine that shares a house with me - and occasionally my girlfriend will come along and carry those bags for me. Their main job is just to carry the bags. They will occasionally reload film for me but that's it. As far as the actual photography goes I do all the photography, they just carry the bags.

Do they get paid for that?---Yes, they do. I pay them $75 for each wedding that I shoot." (AB 2/222)

The impression given by this evidence was that whoever assisted the appellant (including his girlfriend) was paid $75 per wedding.

169 I am therefore satisfied that the Commissioner's comment as to the impression he gained from the evidence was justified. His view that the appellant had been "evasive" when cross-examined on the point may well be based on more than a reading of the transcript. The way in which the appellant answered the questions - his demeanour in the witness box - may well have influenced the Commissioner. Having read the relevant passage (AB 2/308-9), I am not persuaded that the Commissioner was wrong to conclude that the appellant was evasive.

170 The Commissioner said that in September 1993, the appellant was given a medical certificate by Dr Isbel "to go back to full-time unrestricted duties" (AB 1/102). The Commissioner went on to say that in cross-examination, the appellant would not concede that he was then fit for work, but said he had sought the certificate because he was bored.

171 I have had difficulty in understanding the relevant evidence. (AB 3/326). It was put to the appellant that he was completely fit "by 6 February 1993". This is obviously an error: the pursuit was some four months later. However, the appellant said he had been fit to return to duty, because he had asked to do so. I assume he was referring to February 1994.

172 It was then put to the appellant that he had gone to his doctor and said "I want to get back to work because there is nothing wrong with me". It was in that context that the appellant said he had wanted to resume work because he was bored (AB 3/326).

173 It was then put to the appellant that he had reported to his superiors on "8 September", saying Dr Isbel had pronounced him fit for full duties. The appellant agreed, but said he had been told he needed a certificate before he could re-commence. It was put to him that he had sought a certificate because he was in fact fully fit. The appellant denied that: he said he was not fully fit but that he had wanted to return to work.

174 A document was then tendered. The Commissioner apparently accepted it as an exhibit. However, he said it could be "marked 10". Then, according to the transcript it was marked for identification. It was not a medical certificate: see AB 324 - 325.

176 The point taken by the Commissioner was that he did not accept the appellant would have sought a certificate unless he felt himself able to comply fully with it. Given the confusion in the evidence, and the absence of a certificate which fixed the relevant date, I do not think it can be said with any degree of confidence that the appellant disagreed with that proposition. Although he felt he was not fully fit, he nevertheless thought he could carry out his duties.

177 In all the circumstances, I am not satisfied that the Commissioner's criticism of the appellant was justified.

178 The appellant gave evidence about taking three months long service leave from November 1993. He said he went with a friend to the USA.

179 The Commissioner said this involved long flights and driving an average of 160 kms per day. As the appellant said he had needed medical treatment for his spine at only one point in the journey, albeit over a period of a few days, the Commissioner concluded that if the appellant did have spinal symptoms, they could not have been serious (AB 1/102).

180 This conclusion appears to leave out of account the appellant's evidence about the pain and discomfort he suffered generally during his leave. (AB 206 - 208) The appellant said, in summary, that he managed with the help of anti-inflammatory medicines, a hot water bottle, bed rest and frequent breaks when travelling by car. In these circumstances, I consider the Commissioner may have been unjustified in his conclusion

181 The Commissioner referred to evidence that after the pursuit the appellant had been towed on a "ski-biscuit" behind a speedboat and had joined with others in lifting a car body. The Commissioner said again that if the appellant had sustained spinal injuries, they could not have been serious.

182 The appellant submits, in effect, that the Commissioner thus engaged in speculation: that he should have had a greater regard for the circumstances in which these events occurred. In particular, it was said that the ski-biscuit matter was an isolated incident of short duration, which the appellant immediately regretted.

183 While there is some force in that submission, the Commissioner was, I think, justified in taking the view that if the appellant's symptoms had been as serious as he described them to be, he would not have contemplated such activities. This is a matter about which the Commissioner was entitled to take a view based on his overall impression of the appellant. I am not persuaded that he was wrong.

184 I therefore accept that in relation to some of the credibility points the Commissioner's adverse view of the appellant was unjustified. However, I am not persuaded these points made a significant contribution to the Commissioner's overall view of the appellant's credibility. It must not be overlooked that the Commissioner prefaced his credibility points with the statement:

"In the final analysis it is the combined weight of the totality of all these points when assessed with the balance of evidence that is important." (AB 89)

This, I think, reflects the difficulty faced by a trial Judge in rationalising the basis on which he or she forms a view about credibility.

185 This difficulty was articulated by Lord Hoffmann (with whom all the other members of the House of Lords agreed) in Biogen Inc v Medeva PLC (1996) 36 IRP 438 at 452:

"The need for appellate caution in reversing the Judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous Judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed feelings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la verite est dans une nuance), of which time and language do not permit exact expression, but which play an important part in the Judge's overall evaluation."

186 This passage has been approved by the Full Court of the Federal Court in Esso Australia Resources Ltd v Commissioner of Taxation (1998) 98 ATC 4768 at 4779 and S & I Publishing Pty Ltd v Australian Surf Lifesaver Pty Ltd (1999) ATPR 41-667 at 42,505.

187 It is considerations such as those which caused Brennan, Gaudron and McHugh JJ to say in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:

"More than once in recent years, 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 the facts incontrovertibly established by the evidence' or which was glaringly improbable".

Here, of course, the Commissioner's finding as to the course of the pursuit did depend to a substantial degree on the credibility of Constable Sandilands. In these circumstances, I return to the question whether the appellant suffered any prejudice as a result of the Commissioner's refusal to allow him to give evidence about the location of the Strikers indoor cricket centre.

188 As I have noted above, it might be said that if this evidence had been given, Constable Sandilands' evidence about collecting the appellant might have been controverted: thus casting doubt on his evidence about the admission said to have been made by the appellant about a cricket injury.

189 It is true that the Commissioner referred to this matter as "a key evidentiary issue". At that stage of the trial, it was a fair observation. But it was early days. The Commissioner had not then heard from Constable Sandilands, whose evidence was tested in an extensive cross-examination. Nor had the Commissioner heard evidence from the two police officers who said the appellant had spoken of his cricket injury.

190 The Commissioner was entitled to form a favourable view of Constable Sandilands' credibility. And he was entitled to accept the evidence of the other police witnesses. I think it fanciful to suppose that the outcome of the trial would have been different if the appellant had given evidence about the location of Strikers.

191 In short, although I accept that the Commissioner's discretion miscarried, I am not persuaded that he "failed to use or palpably misuse his advantage", or acted on evidence which was "incontrovertibly established" or "glaringly improbable": to quote from Devries' case, supra.

192 Counsel for the appellant submitted that the High Court had put a gloss on the formulae set out in Devries' case in State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588, particularly by Kirby J. Counsel submitted that the question for the appellate court should be whether there was "a sufficient foundation for the decision". But even if that was the appropriate test, in my view it was satisfied in the present case. The appellant has not, therefore, suffered an injustice.

The second category: refusal of leave to discontinue

193 On the eighth and penultimate day of the trial, counsel for the appellant made an application for leave to discontinue the action on the basis that the appellant would file a new set of proceedings and would seek to have the matter re-tried. (AB 1316) Counsel said that it would not have been necessary to make the application had the Commissioner given the appellant leave to re-open his case to adduce the evidence about the location of the Strikers Indoor Cricket Centre and to call the physiotherapist. Somewhat intemperately, counsel said that if he had made the application for leave to discontinue at an earlier stage "I might be accused of trying to intimidate the court." (AB 1317)

194 The application was opposed. In response, counsel for the appellant said:

"I didn't advance the grounds in terms of making the application [to] discontinue because I didn't think it was necessary that I have to repeat the various expressions of dissatisfaction that I made during the course of the trial, Sir. ... I think it's clear that counsel has concern in terms of the partiality in relation to some rulings."

A little later, counsel said that it was essentially his and his client's position that there was no benefit in allowing the matter to proceed to judgment because his client had "reasonable fears as to the likely judgment that would be entered".

195 After hearing lengthy submissions, the Commissioner considered the application over an extended luncheon adjournment. He then gave ex tempore reasons in which he dismissed the application. The gravamen of his reasons was that discontinuance at a late stage in the proceedings for the purpose of allowing the appellant to re-litigate would amount to an abuse of process. The Commissioner said that if he did grant leave to discontinue, it would be on the basis that the appellant undertook not to commence fresh proceedings in respect of the same subject-matter. That undertaking was not given.

196 In his grounds of appeal, the appellant contends that he had a bona fide claim and was entitled to have it determined by a court but that, in effect, because the Commissioner had refused to allow the appellant to re-open his case, he had no alternative but to seek leave to discontinue so as to be able to bring fresh proceedings.

197 I do not accept that to be the appropriate approach. A party dissatisfied with rulings made against him during the course of a trial is entitled to appeal against the final judgment. If the appellate court is satisfied that the trial Judge was wrong and that the appellant thereby suffered an injustice, it can order a re-trial. That is the course taken by the appellant in this case.

198 The appellant then contends that the Commissioner's discretion miscarried because he did not explain why it would be an abuse of process if the appellant was to be permitted to re-litigate.

199 With respect, the reason is so obvious that it hardly needs to be explained. The Court's process and procedures are available to facilitate the resolution of disputes according to law. It is an abuse of that process to permit a plaintiff who feels that a case is not going well, to withdraw and re-litigate, in the hope of improving his case or finding a more sympathetic Judge. To permit such a course in those circumstances would be to impose a wholly unwarranted burden on a defendant. It is true that prejudice to the defendant might be ameliorated by an order for costs; but prejudice cannot be eliminated. Hence the abuse if such a course is permitted.

200 It is true that situations have arisen in which plaintiffs have been permitted to discontinue in order to re-litigate. However, leave is given only in special circumstances. SCI Operations Pty Ltd v Trade Practices Commission [1984] FCA 52; (1984) 53 ALR 283 was such a case. There, the relevant considerations were that the plaintiff should not be compelled to litigate against its will, an action which it believed on reasonable grounds to be pointless. The circumstances which made the litigation pointless had not been designed by the plaintiff, nor could they readily have been foreseen. The merits had not been entered into: the plaintiff's case was not lacking in good faith or merit and the plaintiff was prepared to surrender the right to pursue the relief it had been seeking.

201 Brown v Parker [1961] WAR 194 was another such case. There, justice required that an action brought by a widow pursuant to the Fatal Accidents Act 1846 should be discontinued so that a fresh action could be brought pursuant to the Fatal Accidents Act 1959 under which the plaintiff would be entitled to recover a greater quantum of damages.

202 Setting aside the question of bias, to which I shall refer below, the present case is quite different. As I have said, the appellant's dissatisfaction arose from unfavourable rulings on evidentiary issues. In my view, the Commissioner did not err in imposing on the appellant a condition that he would not re-litigate if given leave to discontinue. That is what the justice of the situation required.

203 There is a further point. On the hearing of the appeal, counsel for the appellant submitted that it had always been open to a plaintiff to non-suit himself. As I understood the submission it was to the effect that this right remained, notwithstanding the provisions of O 23 of the Rules of the Supreme Court which govern the right of a plaintiff to discontinue.

204 I do not accept that submission. In my view, O 23 is a comprehensive code relating to discontinuance which has subsumed any pre-existing right of a plaintiff to a non-suit.

205 The question of bias was raised in par 44 of the grounds of appeal as being one of the bases on which the appellant had sought leave to discontinue. The matter was addressed in greater detail in the written submissions filed by the appellant's counsel on the hearing of the appeal.

206 Those submissions contain the following propositions which I will accept as correct for present purposes:

"* A judicial officer should disqualify himself from continuing to hear a matter if the parties or public entertain a reasonable apprehension he may not bring an impartial and unprejudiced mind to the resolution of the issues ...

* Observations made by a judicial officer during the course of the hearing and in delivering reasons for judgment may demonstrate a reasonable apprehension of bias.

* A judicial officer is required to adopt an even-handed approach in the conduct of a trial."

207 It is then submitted that the conduct of the Commissioner gave rise to a reasonable apprehension of bias for the following reasons:

"a) accusing Counsel for the Appellant (Plaintiff) of being 'paranoid';

b) extending indulgences to Counsel for the Respondents (Defendants) when no such indulgences were granted to Counsel for the Appellant (Plaintiff);

c) in a succession of rulings including leave to reopen the case and to adjourn to call further witnesses, demonstrated partiality against the Appellant (Plaintiff);

d) having accused Counsel for the Appellant (Plaintiff) of being paranoid, invited Counsel for the Plaintiff to 'let us try and do this in a civil and organised fashion' and 'don't be argumentative';

e) having heard argument from Counsel for the First - Third Respondents (Defendants) and part heard Counsel for the Fourth Respondent (Defendant) in opposition to the Appellant's (Plaintiff's) Application for leave to discontinue, suggested to both Counsel for the Respondents there was 'some argument about whether there would be some abuse of process';

f) in respect of the First - Third Respondents' (Defendants') Counsel's request for an order for costs in respect of the Application for leave to discontinue the proceedings, he queried:

'Costs on what basis: party party basis, solicitor client basis?'

g) in his reasons for decision exhibited partiality;

'The question at the end of the process is whether an unsuccessful litigant has a justifiable sense of grievance because there has been a miscarriage of justice'."

208 The reference to counsel being "paranoid" arose in the following way. During the examination-in-chief of Constable Sandilands, his counsel sought to tender a copy of a form known as a pursuit information return. Constable Sandilands gave evidence that he had completed the form in his own handwriting following the pursuit.

209 Before accepting the document the Commissioner asked the appellant's counsel if he had a copy. Counsel said he could find one because it was among the discovered documents. He asked if he might be given a copy. At that point, the Commissioner accepted the document as an exhibit. (AB 562)

210 A short time later, counsel for the first defendant asked his client about a matter arising from the pursuit information return. Counsel for the appellant then asked what was the purpose of the return being admitted to evidence. The Commissioner said he had already made it an exhibit. Counsel for the appellant then objected. He said he had only just been able to find the form because counsel for the first defendant would not supply him with a copy. Counsel for the first defendant then submitted that the document was admissible: and the Commissioner pointed out that he had in fact admitted it into evidence.

211 The following exchange then took place between counsel for the appellant and the Commissioner:

"THE COMMISSIONER: Well can I just say this: I have already ruled that it can come in, and it's already in. Sorry. The reason I asked if you had a copy of it, was in relation to the tender of it.

COUNSEL: Sir, I said that it had been discovered and that it was quite obvious that I was looking for the document, sir, and I have only just found the document.

THE COMMISSIONER: Nothing is that obvious. If you're looking for that document, people move around at the bar table with papers all the time. I'm not to know what you are looking for.

COUNSEL: Sir, I was looking for the document. You will have to accept it, that I was looking for it, sir.

THE COMMISSIONER: I am not saying I don't accept it. I'm just trying to tell you don't expect me to be able to read people's minds as to what they are doing at the bar table unless someone speaks to me.

COUNSEL: Yes, I appreciate that, sir, and I have said that I have now found it, sir. Before the luncheon break, I raised this issue, sir. I understood that if they were going to tender documents, they would provide copies to me rather than expecting me to find the documents, sir. If they're not going to do that, sir, then I will have the document, I will read it through and then I will search for my - and the witness ...."

212 The Commissioner then asked counsel for the defendants to give copies to counsel for the appellant when putting documents to the witnesses.

213 Counsel for the appellant then asked why copies had not been provided. The Commissioner said:

"Let's not just continually wander to get into argument about these sorts of issues."

214 Counsel for the appellant then said it was a matter of courtesy: he expected the same courtesy to be extended to him as he had extended to other counsel in relation to the provision of copies.

215 After that matter had been resolved, counsel for the first defendant sought to resume his examination on the document. He was then stopped by the Commissioner who, appreciating that counsel for the appellant had not had a copy of the document before him when it was tendered, said that he would "re-visit the tender of the document".

216 Counsel for the first defendant then submitted that the document was admissible on a number of grounds, including s 79C of the Evidence Act. Counsel said he was speaking from memory as he did not have the Evidence Act in court.

217 He continued his submissions to a point at which he was asked by the Commissioner what was the relevant provision in the Evidence Act. When he appeared to be unsure, the Commissioner suggested:

"Perhaps we will just leave that limb of the submission to one side and when you are in a position to advance it, you can have the opportunity." (AB 1168)

218 Counsel then suggested that the document could be received conditionally subject to further argument. The Commissioner then asked counsel for the appellant what he wanted to do.

"Sir, I have a concern. Why is the courtesy extended to counsel for the first through third defendants to advance his argument at some later stage when he has had the opportunity to research that."

220 The Commissioner told counsel that he was being argumentative. He said it was not a case of extending someone a courtesy and someone else not a courtesy:

"It is so someone else can get up on their feet and argue a particular point without having to sit around and wait ... there is no need to be paranoid about being left out." (AB 1169)

221 I accept that the use by the Commissioner of the word "paranoid" was unfortunate. However, I am not persuaded that it demonstrates any bias against the appellant. The substance of the Commissioner's remark was, I think, a justifiable response to the somewhat petulant attitude adopted by counsel for the appellant.

222 Of course, any counsel is entitled - indeed, required - to advance his client's case as forcefully as the circumstances require. However, that duty must always be discharged courteously. It seems to me from the exchanges which I have set out above, that counsel for the appellant fell short of that standard, to the point of being rude to the Commissioner.

223 The Commissioner had acted very fairly in permitting counsel for the appellant to re-open the tender of the document. The Commissioner undoubtedly wanted to give counsel for the first defendant the opportunity to defer argument on the question of admissibility until he had researched it. This was not a matter of courtesy: it was done in order to ensure that the Commissioner derived the maximum assistance from counsel. As the Commissioner made plain to counsel for the appellant, he wanted to proceed expeditiously with the case, a result which his proposal would have achieved without detriment to the appellant. This is clear from the following exchange:

"COUNSEL: I am not being paranoid about this, sir. I do not have an instructing solicitor here, I do not have the same courtesy. If I had requested the court that the matter be stood - - -

THE COMMISSIONER: No, no. You are suggesting that I am not extending you a courtesy.

COUNSEL: Yes, I don't get the same courtesy extended, sir.

THE COMMISSIONER: No, no, you are misunderstanding the situation. Can I just say this to you: as I understand it someone has gone outside to get an Act, and I don't want to waste too much time on this - - -

THE COMMISSIONER: All right. So you can try up on your feet. No-one is disadvantaged. I am trying to give everyone the opportunity to have a say.

COUNSEL: In order for me to achieve the same I would have to ask the matter to be stood down.

THE COMMISSIONER: Let us just put that to one side. It is not advancing the cause anywhere.

COUNSEL: - - - in relation to the documents that are required to be brought into existence for official purposes, sir, a number of the documents that you specifically excluded were documents that were required to be brought into existence for official purposes. I would remind you of that, sir. My friend also advanced the credibility aspect, sir. I find it very unlikely - - -

THE COMMISSIONER: Let us try and do this in a civil and organised fashion.

COUNSEL: I don't have a copy of the Evidence Act, sir.

THE COMMISSIONER: All right. If you want me to wait so you can get a copy I am happy to afford that opportunity to you.

224 It is submitted that the Commissioner's remark "Let us try and do this in a civil and organised fashion" and "Please don't be argumentative" exhibit bias against the appellant. Again, I disagree. In my view, the remarks were a wholly justified response to continued rudeness on the part of counsel for the appellant. Clearly, the Commissioner was not biased against the appellant. He ruled in favour of the appellant that the document was inadmissible after hearing further argument.

225 This deals with (a) and (d) above. As to (b): it is not clear precisely what indulgences are being referred to. However, reading the transcript as a whole, I am not persuaded that there is any merit in the complaints.

226 As to (c): the fact that the Commissioner ruled against the appellant on the question of re-opening the case and adjourning to call further witnesses does not demonstrate partiality. There is not the slightest reason to suppose that the Commissioner made his rulings other than on a proper consideration of the issues which he was required to resolve.

227 The complaints made against the Commissioner in (e) and (f) above appear to be that he made suggestions which were helpful to the defendants. I do not accept that was the case. The Commissioner was faced with an unheralded application for leave to discontinue made in most unusual circumstances. By asking the questions whether there was some argument about an abuse of process and as to the basis on which costs might be awarded on a discontinuance, the Commissioner was clearly seeking assistance from counsel about matters which he thought, quite justifiably, might be relevant. That is not a demonstration of partiality.

228 Finally, I do not accept that the Commissioner's reasons for decision exhibited partiality. He dismissed the claim because he did not believe the appellant's evidence that he had been injured in the pursuit. That conclusion was open to the Commissioner on the evidence he heard. It is not a manifestation of bias.

229 For all these reasons, I would dismiss the appeal. [ IMAGE ]