Guest v The Nominal Defendant

Guest v The Nominal Defendant - [2006] NSWCA 77 - NSWCA 2006 case summary — Zoe

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Thursday 25 May 2006 BENJAMIN TIMOTHY GUEST v THE NOMINAL DEFENDANT Judgment 1 MASON P: I agree with the orders proposed by Ipp JA and with his reasons concluding that, if the appellant was struck by an unidentified motor vehicle, negligence was not established. 2 I do not share his Honour's conclusion on the motor vehicle accident issue. The case is perplexing and finely balanced, but the balance of probabilities supports the appellant's contention that he was struck by a vehicle, in my opinion. Since there is a detailed summary of the evidence in Ipp JA's reasons and since mine is a minority view I shall be brief. 3 Unlike Ipp JA, I do not regard the speech of Lord Brandon in Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948 as relevant to the present case. The Popi M was an insurance claim concerning a ship that sank in deep waters in which the owners had to prove that the loss was by "perils of the seas". The shell-plating beside the engine room suddenly opened up, allowing a jet of sea water to enter at such a rate that the vessel's pumps could not cope with the inflow. The owners conceded that the aperture could not have been caused by collision with a submerged rock or with a floating object; but contended that the aperture was consistent with the vessel having collided with a submerged object, such as a submerged submarine. The insurers contended that the cause of the aperture was prolonged wear and tear of the vessel's hull over many years. 4 At first instance, Bingham J held that the "submarine theory" was extremely improbable, but that the "wear and tear theory" was virtually impossible. In those circumstances, he held that the submarine theory should be accepted on the balance of probabilities. This decision was upheld in the English Court of Appeal, but reversed in the House of Lords. Lord Brandon emphasised (at 951) that the case turned on its facts, pointing out that the inability of divers to examine the sunken vessel meant that there was a genuine third possibility. This was that the evidence left the court in doubt as to the cause of the ship's loss. There was no mention of scuttling, but it is clear that his Lordship had this or some other more than theoretical possibility in mind. The unexcluded possibility meant that the trial judge had been wrong to approach the case on an either/or basis. The Popi M is discussed by the Hon Mr Justice D H Hodgson in "The Scales of Justice: Probability and Proof in Legal Fact-Finding" (1995) 69 ALJ 731 at 749-50. The learned author suggests that there are passages in Lord Brandon's speech that seem be saying that the onus was on the ship owner to establish that one particular peril of the sea was, on the balance of probabilities, the cause of the loss (see at 953-4). Mr Justice Hodgson suggests that this would be an incorrect legal proposition. I respectfully agree, although I doubt if this is the true ratio of the decision. 5 In the present case, no one even hints at a third possibility beyond a motor vehicle accident and a terrible assault. The near certainty that these two alternatives cover the field means that, unlike the Popi M situation, the effective choice is an "either/or" decision. Naturally, the appellant must establish his contention on the probabilities. 6 As Ipp JA points out, the appellant may well have moved before Mr Douglass came on the scene. This cautions against confining oneself to accident reconstruction theories proceeding from the position and direction of the appellant when first seen by Mr Douglass. 7 Ultimately, the two accident reconstruction experts did not exclude the possibility of the scrotal injuries having occurred in some manner involving a collision with a moving vehicle, although Dr Henderson did not accept that the combination of injuries was consistent with a motor accident and Mr Gibson did not accept that the chest injuries were consistent with an assault. Neither expert, nor for that matter the medical practitioners, had ever experienced a similar concatenation of injuries. Yet the injuries had undoubtedly happened in a violent encounter and fairly shortly before the appellant was discovered bleeding on the road. 8 The possibility of a random attacker cannot be excluded, but the probability of such an attack having occurred when and where it did seems to me to be very highly improbable. The alternative is much more probable in what was effectively a two-horse race. 9 The appellant's pre-injury memory brought him as far as walking down Old Bar Road to between 50 and 100 metres east of the intersection of Old Bar Road and Metz Road, ie close to where he was found. He got there after cutting across country in the middle of the night, on an unusual route that was unexpectedly interrupted when his car became stuck on the short-cut track. Keys, coins, human tissue, blood and torn blue fragments of clothing apparently worn by him were found close to where he was lying, scattered on the road, but principally on its southern side. The trial proceeded on an assumption by both parties that the flesh found on the road came from the appellant's scrotal area. The scrotal injuries were by no means clean cut and Dr Ghaly reported that the scrotum was heavily contaminated with "road dirt". 10 Ipp JA gathers the factors supporting the inference that the appellant was injured by a vehicle at par [106] of his reasons. Some of those factors address the improbability of the alternative theory, to which I now turn. 11 To my mind, the assault theory verges on the fantastic, quite apart from its need to accommodate the "objective" facts of the appellant's location when discovered by Mr Douglass and of the debris scattered over the roadway. There is no evidence suggesting that anyone would have had a motive to inflict the particular injuries, especially the rough castration. It is almost inconceivable that the putative assailant would have lain in wait for the appellant in the area and at the time in question. The route taken by the appellant as he made his drunken way home on the night in question was entirely unforeseeable. Why would an assailant attack the appellant on or near the road or, having attacked him elsewhere, have bothered to bring him to the road? 12 It is not I think suggested on either side that the scrotal injuries could have been deliberately inflicted through the smallish vertical aperture in the appellant's pants and underpants. On this basis, the clothing must have been pulled down before an assailant could have inflicted the injuries. Why then did the assailant bother to put the clothing back into place. I am assuming that the appellant did not pull his clothing back on, although that possibility cannot entirely be excluded. 13 The appellant's amnesia is strange on any account. But it becomes even more curious if it draws itself across the entirety of a confrontation with an assailant that involved a deliberate act of castration. There is little evidence of any serious head wound, itself a strange concomitant of the sort of assault that one might envisage. There was no suggestion that the appellant would have been moved by fear or some other emotion not to name his assailant(s) and it is difficult to infer why he would have been silent on the matter if he had any memory of an assault. 14 It was not put to the appellant in cross-examination that he had been violently assaulted. Indeed, the case appears to have proceeded on the basis of acceptance of the appellant's testimony of remembering walking virtually to the point where he was found by Mr Douglass. 15 HANDLEY JA: I agree with Ipp JA. 16 IPP JA: The principal questions in the appeal

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27 Shortly after leaving the Pacific Highway, Mr Guest's car became stuck on the track and he could not get it to move. He got out of the car and walked in a south-easterly direction until he came to Old Bar Road which was about 2.65 kilometres away. He was found a further 2.59 kilometres to the east on Old Bar Road. Thus, he walked about 5½ kilometres from where his car was stuck. 28 Mr Guest said that, as he was walking along Old Bar Road, a number of cars went past him from behind, that is, going east. One car went past him in the opposite direction, going west. He attempted to flag down these vehicles to get a lift, but was unsuccessful. 29 Mr Guest continued eastwards, walking along the grass and gravel to the left of the bitumen of Old Bar Road. He passed the intersection between Old Bar Road and Metz Road. He walked another 50 to 100 metres to the east of that intersection. 30 The next thing Mr Guest recollects is a policeman walking away from him. There was an ambulance there at the time. According to Mr Guest, he then "got up off the road and walked over [to] the back of the ambulance". He did not realise he had been injured until he was in the back of the ambulance. It was only then that he began to feel pain. 31 At about 4.30 am on 30 December 2000, a pensioner, Mr Kevin John Douglass, was taking his daughter to work. He was driving along Old Bar Road in an easterly direction. He saw Mr Guest lying on the road in the middle of the left (northern) lane in which he was travelling. Mr Douglass changed lanes and went around Mr Guest, who was lying lengthways with his head to the west and his back to the middle of the road (that is, to the south). 32 Mr Douglass did not stop but drove on to Old Bar, about eight or nine kilometres away. At Old Bar he telephoned Emergency Services and returned to where Mr Guest was lying on the road. Mr Douglass found that Mr Guest had moved and was off the road on the left-hand (northern) side. The police arrived at the same time as Mr Douglass. Mr Douglass said that Mr Guest went to sit on the tailgate of the police vehicle. 33 Old Bar Road, where the injury occurred, was in a rural setting in a sparsely populated area. The nearest home was about 200 to 300 metres away from where Mr Guest was found. There were high trees on the left as he walked, that is, to the north. To the south the land was open with a fairly wide grass verge. There was nothing to obscure vision. The road was virtually straight. The precise width of the road is not known, but it seems to be a standard bitumen country road. It was not particularly narrow. The speed limit was 90 kilometres an hour. 34 If Mr Guest started walking at about 1.00 am and he was not interfered with save for being struck by a vehicle, it would seem that he had been lying on the roadway for about one to two hours before Mr Douglass observed him. 35 Mr Douglass called the ambulance at 4.38 am. It arrived on the scene at 5.02 am. As I have mentioned, the police arrived at about the same time. 36 When Mr Guest was found, he was bleeding from the scrotal area. He was wearing shorts and loose fitting underpants at the time. The ambulance officers cut Mr Guest's shorts and underpants in the crotch in order to remove them. 37 In addition to the cut made by the ambulance officers, there was a single vertical cut or tear in the shorts as well as in the underpants. These cuts were on the left-hand side of the upper part of the front of the shorts and underpants, towards the waist. The cut in the shorts appeared to be aligned with the cut in the underpants.

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38 Keys, coins, human tissue, blood and torn blue fragments of clothing apparently worn by Mr Guest at the time were found close to where he was lying, scattered on the road, but principally on the southern side. Mr Harben informed the Court that the trial had proceeded on the basis of an assumption by both parties that the flesh found on the road came from Mr Guest's scrotal area. 39 Two photographs (photos 2 and 7, Blue Book 266 and 279) show small pieces of blue fragments of clothing lying on and next to pieces of flesh. The material and flesh depicted on photo 7 are depicted in another photo (Blue Book 273) as lying on the northern half of the road. It is not possible to discern where the materials and flesh depicted on photo 2 were lying. Other photos show several other pieces of flesh and some fragments of clothing lying separately on the road. 40 It is not known whether all the cuts in the crotch of the shorts and underpants were made by the ambulance officers. 41 According to Mr Guest, some ten dollars in notes was missing from his wallet. From a photo of his wallet, apparently showing what was in it when found, it seems that his driver's licence and a debit card were also missing. The evidence as to what was in his wallet, however, was vague. 42 Mr Guest's father, after the incident, informed the police that he believed that Mr Guest had been castrated by the deliberate act of an individual. He was sufficiently concerned about his son's welfare to insist that the police mount a guard at the hospital to make sure that he was not attacked again. The police, however, did not find anything in their investigations that supported the father's fears. The evidence does not establish that Mr Guest had any enemies. 43 Dr Dauncey, a pharmacologist, provided a report based on a blood sample taken from Mr Guest at 6.00 am at the hospital where he was treated. According to that sample, his blood alcohol content was 0.112g per cent. Dr Dauncey expressed the opinion that at the time he was injured Mr Guest's blood alcohol content was likely to have been about 0.169g per cent. She considered, on that basis, that Mr Guest was "heavily intoxicated at the time" and alcohol "would have significantly compromised his ability to take reasonable care of himself". Dr Dauncey stated: "[H]is cognitive ability would have been seriously diminished, causing confused thinking and a distorted perception of reality. His physical symptoms are likely to have included serious impairment of his balance and co-ordination causing difficulty with walking and not stumbling or over balancing. His movements would have been clumsy …". 44 She concluded: "It is therefore my opinion that Benjamin Guest's ability to use the road safely, observe his surroundings with vigilance and make appropriate decisions based on his observations are most likely to have been seriously impaired by the alcohol he had consumed that evening."

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The injuries to the scrotum and the surrounding areas 45 As I have remarked, the injuries to Mr Guest's scrotum are at the forefront of importance in this case. Dr Ghaly, the treating surgeon, described those injuries as follows: "The findings were a mutilated right testis. All the tissues that were left were tunica albuginea … The cord of the left testis was found but there was no testis to be found on the left side. This man had been castrated from his injuries. The scrotal injury was ragged and irregular. There was no significant injury to the penis, there was only minor bruise [sic] there." 46 Another description of the scrotum injury by Dr Ghaly is equally graphic: "There were obvious lacerations to his scrotum whereby the right testis was squashed and crushed and there was only the tunica albuginea found. An extensive, grossly contaminated wound to the scrotum on both sides. The left testis was not seen." 47 Mosby's Medical, Nursing & Allied Health Dictionary, 6th Ed, defines tunica albuginea as "a tissue covering of white collagenous fibres, such as the sclerotic coat of the eye ball and the testes". Blakiston's Gould Medical Dictionary, 4th Ed, defines tunica albuginea as "a general term for a dense connective-tissue covering layer". The work defines tunica albuginea testis as "the dense fibrous capsule of the testis …" 48 Dr Henderson described the injury to the scrotum as "the almost complete total loss of both testes". As I understand the position, one testicle was severed and has never been found. The other was completely crushed so that only tissue was discernible. 49 Dr Ghaly was asked whether the scrotum had been torn or cut and he replied that he was "inclined to say it's more cut". He said that there was bruising of the edge of the skin and a strong force had to cause that damage. He was asked what sort of action might have caused the jagged and irregular appearance of the scrotal skin and he said: "I cannot really answer that at all. I can't imagine".

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Later in his report, Mr Gibson referred to the somersault as being "violent". 74 I would pause to note that in this report Mr Gibson appears to assume that Mr Guest may have been struck in the southern, west bound, lane and not near the edge of the northern lane as Mr Harben submitted. I would also observe that there was no bruising or external damage to the knees that supported a theory of impact to them. 75 In a later, supplementary report (after Dr Henderson had provided his report) Mr Gibson said that the injuries to the chest "may result from the top bar of a bull bar". He said that, after the impact with the chest, the "motion of the vehicle would also slide the pedestrian up onto the vehicle bonnet". He repeated this, saying, "The trajectory of the pedestrian post impact would be up onto the bonnet and then over the driver side mudguard. The body of the pedestrian would then rotate legs over head down the side of the vehicle, partially driven by the impact to the left knee by the bumper bar". Later in the supplementary report he said that Mr Guest had a "fender vault trajectory, where the pedestrian rolls off the vehicle side ways [sic] post impact". 76 As I understand these two reports, and as Sidis DCJ observed, they reflect a shift of opinion by Mr Gibson. In the first report Mr Gibson expressed the opinion that Mr Guest, after impact with a bull bar, was thrown in a violent somersault over the driver's side of the vehicle and was caught on the rear structure of the vehicle. In the second report he said that, after the bull bar struck his chest, Mr Guest slid on to the bonnet and then over the driver side mudguard from where his body rotated, legs over head, down the side of the vehicle. This he said was a "frontal projection". On a common sense basis, the latter description is an unlikely scenario; it involves the body moving from the bull bar, over the mudguard, to the bonnet, then over the mudguard again, and then down the side of the vehicle. It is not apparent to me how this could occur. 77 Mr Gibson gave oral evidence. The following evidence given by him is of particular relevance: (a) The motion of a pedestrian in an impact is very complicated and can be chaotic. (b) Mr Gibson thought that Mr Guest would have been thrown over the top of the vehicle in a cartwheel (in the opposite direction to that of the vehicle) while Dr Henderson thought that Mr Guest would have been knocked forwards in the direction in which the vehicle was moving. (c) Mr Gibson agreed that his theory depended on Mr Guest having been struck by a bull bar of a large four-wheel drive vehicle or a truck and a large part of the force being taken by his upper body. (d) Mr Gibson stated that, if a vehicle brakes after hitting a pedestrian, the pedestrian is likely to be projected forwards in the same direction as the vehicle is travelling; in some circumstances, however, if the vehicle continues at a constant speed, the pedestrian "will go right over the vehicle". (e) If Mr Guest sustained his injuries (as depicted in photographs seen by Mr Gibson) in a collision with a vehicle, the point of impact with him would have been well above his centre of gravity (he was over six feet tall). (f) The likelihood was that a man the size of Mr Guest, over six foot tall, who is hit in the chest by a vehicle travelling towards him would be knocked forward in the direction the vehicle is travelling and would eventually come to rest on the road in front of the vehicle. Mr Gibson said that the "average accident will have these end results" but observed that other possibilities were the "wrap" (where the pedestrian "falls over the front of the vehicle and is sort of captured on the front of the vehicle") and a "frontal projection", which Mr Gibson favoured. (g) Mr Gibson accepted that - on his "vehicle" scenario - there was only one theory that could explain how Mr Guest would have suffered his testicular injury. That theory was that Mr Guest rotated, almost cartwheel-like, down the side of the vehicle and came into contact with some sharp protruding object on the side of the vehicle. In other words, the impact caused Mr Guest to be lifted off the ground and to be propelled on to various points of the vehicle and then on to the roadway. This, Mr Gibson said, could have caused the injuries to the sternum and the scrotum. Mr Gibson said that he could not advance any other theory. He had never seen injuries like those sustained. (h) Mr Gibson said, when a proposition was put to him as to how the abrasions were caused, "Well again we end up with possibilities I think rather than - I can't say with, you know, with certainty, that anything happened really in this particular case". In re-examination, when it was put to Mr Gibson that the impact had thrown Mr Guest "up over the fender", he replied, "well we're not really even certain of that because of our lack of knowledge of the positioning". 78 On Mr Gibson's theory, whatever penetrated the scrotum first penetrated both layers of the loose fitting pants and struck the scrotum as Mr Guest was moving. This caused the tearing to the scrotum, excised one testicle and crushed the other, leaving only tissue. The excised testicle fell downwards through the loose fitting shorts. 79 Mr Gibson accepted that the injuries could have occurred independently of a motor vehicle but argued: "The massive blunt impact to the chest and the resulting internal injuries would be very unlikely to result from an assault. The energy of the impact required is too great for an assault; such injuries require the impact of a hard blunt object at high speed, such as the front of a motor vehicle." 80 Later, in his supplementary report, Mr Gibson stated: "The exact cause of the scrotal injuries is unknown but it is possible that they were the result of impact with the vehicle."

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(h) There was no physical indication of any motor vehicle being involved as a cause of Mr Guest's injuries. No debris or tyre or skid marks were on the road. 92 Many of the matters to which Sidis DCJ so drew attention detracted from the logical and rational force of Mr Gibson's theory. I doubt whether her Honour was correct, however, in saying that Mr Gibson shifted to an opinion that the impact was of the "wrap" type. He merely described this possibility. I do think, however, that Mr Gibson did change his mind about two important matters. Firstly, he seemed to water down the notion of a somersault over the vehicle on to its rear to a notion of Mr Guest being projected over the mudguard and bonnet on the driver's side followed by a cartwheeling motion along the side. Secondly, he seemed to water down his views from the confidence apparent in his first report to diffidence in describing "possibilities" only and recognising the serious difficulties in explaining what occurred in any reliable way. 93 Sidis DCJ pointed out that the opinions of the two experts "were centred upon two features of the incident". Dr Henderson's opinion was based fundamentally upon his inability to accept that Mr Guest "could have suffered his scrotal injuries in the absence of other damage to the pelvic region of his body and his legs and upon the absence of evidence of significant trauma to [Mr Guest's] head and back". Mr Gibson's opinion was based on the fact that Mr Guest was found upon a public road at a point on the road where his possessions were scattered "indicating that he had impacted with and rolled upon the road surface". 94 Her Honour said that each expert agreed that it was possible that Mr Guest's injuries occurred in the manner proposed by the other. That is not correct. Mr Gibson did not agree that Mr Guest's chest injuries might have been caused by an assault. He said that the overall result fitted in to the "profile of a pedestrian impact". Dr Henderson, while accepting that the individual injuries could have been caused by impact with a vehicle, maintained that the overall pattern of the injuries was such that a vehicle impact could not have caused all of them. He expressed the firm opinion that a vehicle could not have caused the injury to the scrotum "without causing injuries to the associated parts of his body". 95 Mr Guest conducted his case on an all or nothing basis and did not contend that his injuries might have been sustained in two different incidents. 96 Her Honour said that she took particular note of a number of matters, including:

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The task of this Court 99 Sidis DCJ made no express credibility findings. There was no real challenge to Mr Guest's evidence. Dr Ghaly's evidence appears to have been accepted, generally. As I have mentioned, the other medical practitioners to whom I have referred (apart from Dr Henderson) were not cross-examined. Her Honour referred to certain criticisms she had of the evidence of Dr Henderson and Mr Gibson. Her Honour was not persuaded, on a balance of probabilities, by Mr Gibson. She did not say whether she was at all influenced by demeanour in making this finding. 100 Dr Henderson and Mr Gibson came to their respective conclusions by relying on an amalgam of their own opinions and inferences based on common sense. The case is essentially one of circumstantial evidence and the inferences to be drawn from that evidence. There are no incontrovertible facts or uncontested testimony that demonstrates that the judge's conclusions are erroneous (or, indeed, correct). 101 In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ said at 126 to 127; [25]: "Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' ( Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287). In Warren v Coombes (1979) 142 CLR 531 at 551), the majority of this Court reiterated the rule that: '[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'" 102 In giving "respect and weight to the conclusion of the trial judge," regard must, I think, be had to the fact that her Honour saw and heard the expert witnesses. The reason for this was expressed by Kirby J in Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 194 ALR 485 at 510; [97] where his Honour observed that it will not always possible for judges, when arriving at a factual conclusion: "… [t]o express all of the considerations that lead them to the evaluative and partly intuitive conclusion required in the particular case. Any exposition of judicial reasons explaining such factual findings is 'inherently an incomplete statement of the impression which was made upon [the judge] by the primary evidence'. ( Biogen Inc v Medeva Plc (1997) RPC 1 at 45 per Lord Hoffmann.)"

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Kirby J pointed out at 14; [44] to [45]: "The present was not a case where the primary judge expressly or impliedly based his rejection of the respondent's case on the conduct or demeanour of witnesses in court. In order to view the conclusions at trial in this light, it would be necessary to revive the notion of an unexpressed and unstated 'subtle influence of demeanour.' Such a revival would … be inconsistent with the new emphasis contained in this Court's reasons in Fox v Percy." 104 On the other hand, in CSR Ltd v Della Maddalena Callinan and Heydon JJ came to a different conclusion on the facts. Their Honours said at [180]: "There are cases in which the advantages enjoyed by trial judges over appellate courts are exaggerated. A complete written record, a degree of detachment from the trial itself, and the sum of the collective knowledge and experience of three or more judges may themselves on occasions place the appeal court in a superior position to that of the trial judge to decide the case. But this is not such a case. This is one case in which 'the subtle influence of demeanour' cannot be overlooked; it is a case in which it 'does not follow that, because [the trial judge] made no express reference to … demeanour …, demeanour … played no part in [his] findings' ( Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 per McHugh J)". 105 The present case differs from CSR Ltd v Della Maddalena because the conflict is between experts. It is, nevertheless, a truism that a judge may be persuaded by a combination of the way in which experts give their evidence and the rational force of their opinions. 106 On the facts of this case, the application of common sense is essential (and crucial) to the determination of the ultimate issue. Therefore, it seems to me, whatever part demeanour played in the judge's decision it must have been of substantially lesser importance than the application of common sense and the logic of the expert's opinions. Accordingly, in my view, this Court should approach the task before it on the basis that, while it may not be in precisely as good a position as the trial judge in considering the competing views of the experts, it is free to overturn her Honour's decision if it concludes that, giving full respect and weight to her conclusion, and taking into account the fact that demeanour to a minor degree may have influenced that conclusion, her Honour was wrong. 107 This case involves two conflicting theories as to the cause of Mr Guest's injuries. Each party submits that the theory advanced by the other is improbable. In a case such as this the Court must bear in mind that a trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case: Suvaal v Cessnock City Council (at 1455; [36]). 108 A valuable guide in cases such as the present is provided by Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at 304 to 305 where the Chief Justice said (albeit in dissent): "In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture'. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd (unreported, delivered 27 April 1951) which is referred to in Holloway v McFeeters ((1956) 94 CLR 470), by Williams, Webb and Taylor JJ. The passage continues: 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' (at pp 480, 481). But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."

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These remarks echo what had earlier been said in Luxton v Vines (1952) 85 CLR 352 at 359-360 by Dixon, Fullagar and Kitto JJ. 109 See also Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948, where the trial judge wrongly regarded himself as compelled to make a choice between a theory which he regarded as extremely improbable and a theory which he regarded as being "one in respect of which any mechanism by which it could have operated was in doubt" (at 955). Lord Brandon (with whom the other members of the House of Lords agreed) said at 955 to 956: "My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four , describes his hero, Mr Sherlock Holmes, as saying to the latter's friend, Dr Watson: 'How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?' It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable. In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned. The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out. The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden. In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible."

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Mr Guest's criticisms of the judge's findings 110 Mr Harben submitted that Dr Henderson's evidence was "fatally flawed" and her Honour should have rejected his evidence in the entirety. It is necessary to address these submissions. 111 A number of Mr Harben's submissions in this regard involved Dr Henderson's errors in assuming that certain scars to Mr Guest's body were caused by trauma on 30 December 2000 whereas, in fact, they were incisions made during the course of surgery carried out on Mr Guest after he was taken to hospital. Sidis DCJ referred to errors of this kind by Dr Henderson, and she took them into account. I have above observed that Dr Henderson later accepted that he had made these erroneous assumptions but maintained the correctness of his theory (which did not depend on them). I do not think these particular criticisms are of any significant weight. 112 Other criticisms involved differences between Dr Henderson and Dr Ghaly. Firstly, Dr Henderson expressed the opinion that the wound on Mr Guest's hip was caused by a stab with a knife. Dr Ghaly did not agree. Mr Harben submitted that "Dr Ghaly's evidence was obviously preferable" as he had been the treating surgeon and Dr Henderson had only seen photographs after surgery had been carried out. Secondly, Dr Henderson asserted that a knife cut could explain a laceration in Mr Guest's right groin over the upper thigh. Dr Ghaly, however, said that there was in fact no laceration to be seen but merely an abrasion where the top layer of skin had been shaved off. Thirdly, Dr Ghaly said that the lacerations on the right arm were ragged and not clean cut. Mr Harben submitted that this was inconsistent with an injury caused by a cut but was consistent with an injury brought about by a protruding point on a motor vehicle. Fourthly, Dr Henderson referred to an injury to Mr Guest's right hand as a defensive wound. Dr Henderson's view in this regard was initially based on the fact that the injury was to the palm. Dr Ghaly said however that it was on the under border of the hand. 113 On my reading of the material, in the first two matters Dr Ghaly was not expressing an opinion that did not admit of another possibility being a reasonable one. As to the third, it seems to me to be more a matter of conjecture than anything else as to whether the wound to the arm was caused by a knife or not. As to the fourth matter, the different position of the injury to the hand does not mean that it was not a defensive injury (as Dr Henderson remarked in cross-examination). I do not think that these criticisms take the matter much further. They raised issues for the trial judge (and raise issues for this Court). It was not submitted that these were matters that Sidis DCJ ignored. They do not render Dr Henderson's theory "fatally flawed", or even necessarily result in the weight of his evidence being discounted. 114 Mr Harben submitted that Sidis DCJ should have discounted Dr Henderson's evidence because the injuries to Mr Guest's scrotum were ragged and not what might have been expected from a knife attack (as suggested by Dr Henderson). Dr Ghaly accepted, however, that the injuries to the scrotum might have been caused by an assault. This submission is not well-founded. 115 Mr Harben submitted that the opinion of Dr Rapaport should be discounted as Dr Rapaport, by his reference to a "focally blunt" damage to the testicles was considering a "squarely frontal collision". He said that Dr Rapaport did not consider a protuberance that could have torn the scrotal region of Mr Guest as he somersaulted over a vehicle. Dr Rapaport, however, was describing the nature of the damage, not its cause. The Nominal Defendant tendered Dr Rapaport's report without objection and Dr Rapaport was not called to testify. In my view, his evidence has to be regarded as being of general application. 116 As regards Mr Gibson, Mr Harben submitted that her Honour misunderstood his evidence and made errors in assessing it. He submitted that the concern her Honour had with the absence of significant head or back injury or damage to the lower part of Mr Guest's body was misplaced. He submitted that in the absence of knowledge of the precise mechanism of the accident it was impermissible for the judge to speculate about its cause. He submitted that, had Mr Guest been catapulted over a protruding part of the vehicle, he could have had his scrotum ripped and torn and then landed heavily on his chest, causing the fractures and abrasions. He submitted that this would not necessarily have led to the type of damage that her Honour was troubled about. He pointed to the injury to Mr Guest's knee. He submitted that the absence of injuries in the areas concerned could only be relevant if her Honour knew of the precise mechanism of the accident and configuration of the vehicle. 117 These submissions are not without some force, but Sidis DCJ was merely expressing the common sense view (supported by the Rivani report) that, had a vehicle struck Mr Guest with the force required to cause his injuries, one would have expected him to sustain injuries to his head and back. Further, the absence of any external injuries to the knees is inconsistent with direct trauma to the lower part of Mr Guest's body (which is essential to Mr Gibson's theory). 118 Mr Harben submitted that her Honour was wrong to be critical of Mr Gibson for referring to different scenarios. He submitted that the thrust of Mr Gibson's evidence was that, because pedestrian impacts are chaotic and there are many unknown factors, it is desirable to look at a number of scenarios. He submitted that on the scenarios postulated by Mr Gibson the injuries suffered by Mr Guest are explicable. In my view, however, the judge was merely expressing some disquiet because of Mr Gibson's shifting of ground as the force of the opposing views became apparent. Her Honour was entitled to take this view, which essentially involves credibility aspects. I should add that, on my reading of Mr Gibson's testimony, he was not a convincing witness. 119 Mr Harben submitted that her Honour placed too much emphasis on the contamination of the scrotal injury by road dirt. He submitted that the existence of road dirt did not necessarily support the scenario of the knife attack. He pointed out that Dr Ghaly said that he remembered road dirt "more than anything else" and his reply should not be taken to mean that only road dirt was present in the wound. The importance of Dr Ghaly's testimony on this issue, however, is that he did not recall any of Mr Guest's clothing being in the scrotal wound, which is a likely consequence had the wound been caused by a vehicle impact. 120 I am not persuaded that Sidis DCJ should have rejected Dr Henderson's views. Her Honour expressly took into account many of the points made by Mr Harben and I am not persuaded that she erred in her approach to Dr Henderson's evidence

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Conclusion as to the cause of the injuries 124 Mr Harben pointed out, correctly, that very many matters that might normally have been used to reconstruct the accident are simply not known. These include the position of Mr Guest on the roadway at impact, his position after impact, the direction he was facing at impact, whether he was moving or not, whether he was upright or crouched or bent in any way, or taking evasive action, the direction and speed of the vehicle, the alignment of the vehicle, the type, size, weight and configuration of the vehicle and whether it had anything attached to it or on it or hanging from it and the damage to the vehicle. The fact that these matters are unknown does not, in my view, assist Mr Guest. 125 I accept that all Mr Guest's injuries, save for the castration, the abrasions to the front of the chest and the derangement of the right knee were readily capable of being caused by an impact with a motor vehicle. 126 The abrasions could possibly have been caused by Mr Guest being attached by some means to a vehicle and being dragged by it along the road for a short distance. The absence of abrasions to other parts of the body such as the face and the front of the legs is, however, noteworthy. 127 It is possible that the derangement to the knee was caused by a motor vehicle accident; the accident might have caused Mr Guest to twist or fall in a way that caused that injury. It is, again, however, noteworthy that he suffered no apparent traumatic impact blow to the lower limbs at all. 128 I do not accept, on a balance of probabilities, that the scrotum injuries could have been caused by an impact from a vehicle without the surrounding areas suffering more trauma than occurred. The area in question appears to have been specifically targeted. 129 I also do not accept, on a balance of probabilities, that the damage to the scrotum occurred through the cutting or crushing motion of a protuberance through the vertical cut it had brought about to the shorts and underpants. 130 There are serious questions about the place where the accident is said to have occurred. This is not without relevance as, had Mr Guest been found in the bush, say 100 metres off the road, the possibility of an assault might have been less improbable than if the place where he was injured were known to be the middle of the road. 131 These matters, in my view, lead to the conclusion that Sidis DCJ was correct in her decision. I, too, am not persuaded that Mr Guest was injured by a vehicle. The evidence left her Honour in serious doubt as to whether a vehicle struck Mr Guest and I, too, entertain the same degree of doubt. The matters listed under the heading "The contrary factors" reinforce this conclusion. 132 In coming to this conclusion I did not, initially, take into account any aspect of demeanour. At the initial stage, I relied solely on inferences drawn from the facts and the opinions expressed by the witnesses. On my reading of the reasons of Sidis DCJ, however, her Honour had some (unexpressed) reservations about Mr Gibson's evidence. This is suggested to me by her Honour's criticisms of his testimony. Such reservations would have confirmed her Honour's view of the probabilities. As I have said, I did not find Mr Gibson's testimony convincing and that is a further factor that reinforces my conclusion. 133 I accept that the assault theory is unlikely. I have set out the factors that lead me to this conclusion. But, on the authorities, where the Court determines that the version advanced by a plaintiff is not a probable one, the Court does not have to choose the most likely of competing theories. In my opinion Sidis DCJ rightly held that Mr Guest did not discharge the onus upon him.

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Negligence 134 Were I to be wrong in this finding, I would not hold the driver to be negligent. The reason for this is that I am not persuaded on a balance of probabilities that the place where Mr Guest was found is where the impact occurred. 135 A finding that Mr Guest was injured by a vehicle means, necessarily, that he was struck more or less in the vicinity of where he was found. This involves accepting the theory that the material found strewn near his body was thrown about when he rotated after the impact. Such a finding would be consistent with Mr Guest's testimony that he walked along Old Bar Road past the intersection with Metz Road. 136 But such acceptance does not, necessarily, mean an acceptance that the impact occurred on the northern lane as Mr Harben submitted. The fact is that Mr Guest moved on his own to the northern edge of the road after Mr Douglass went by. If he was capable of moving then, the inference is that he was capable of moving after he was struck and before Mr Douglass first saw him. He also moved, once the police arrived, to the police vehicle. There is nothing to show, one way or another, whether he did in fact move after he was struck. Therefore, one cannot infer that he was struck precisely where Mr Douglass saw him. Mr Guest might equally have been struck in the centre of the southern lane and then moved to the northern lane before Mr Douglass came by. It is simply not known where he was struck. 137 As Mr Guest was walking along Old Bar Road, he attempted to flag down oncoming vehicles. He had done it on a few occasions but had been unsuccessful in persuading anyone to stop. It is not inconceivable that he was struck on the southern part of the road after crossing in an attempt to flag down another oncoming vehicle. It is not possible to infer that, if this occurred, he walked slowly across. He might equally have run suddenly, from the northern verge, to the southern lane in front of the oncoming vehicle. He was, after all, severely intoxicated. This would be precisely the kind of thing that Dr Dauncey said Mr Guest might do. It is also possible that he was not walking on the northern verge but closer to the centre of the road. This is another unknown factor. 138 In Nominal Defendant v Puglisi the High Court held that the fact that a driver fled from the scene was a circumstance which a jury could take into account in reaching a conclusion as to the manner in which an accident occurred. Gibbs CJ said at 475: "In my opinion, it may be inferred in the circumstances of the present case that the driver of the vehicle drove off because he was conscious that his careless driving had caused his vehicle to collide with a pedestrian."

At a glance

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Judgment (134 paragraphs)

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Cases Cited (12)