JOHN STRBAK v NARELLE NEWTON

The cause of her alarm was that a car driven by the defendant, the present appellant, in which his wife and daughter were passengers, had run off the road, knocked over a small tree between the kerb and the fence enclosing the paddock, ploughed through the fence and demolished some feed bins, which the plaintiff had placed there for her horse, and other obstacles.

The plaintiff sued for the injuries and their consequences which her sudden movement had occasioned. The matter came first before Judge Foord on 7 and 8 May and 3 and 4 June 1986; that was very nearly four years after the accident, and upon his retirement, while the matter was part heard, was completed by Judge McGuire on 20, 21 and 22 July 1987; that was nearly five years after the accident, judgment being delivered on 24 July 1987.

It was agreed between the parties that the transcript of evidence taken before Judge Foord should be tendered and admitted before Judge McGuire although, all witnesses bar three, gave evidence before both of the judges.

Judge McGuire found want of care in the defendant, though that was admitted. He found that the plaintiff was injured as a foreseeable consequence of the risk created by the carelessness and, for this actionable negligence, assessed the plaintiff's damages in a total sum of $152,297.

The defendant has appealed upon these grounds; first, it is submitted that there was a miscarriage of the trial because the learned trial judge failed to give adequate reasons for his decision. Secondly, that in any event that decision was wrong in fact, that is to say, several of the findings were wrong. Thirdly, that the finding of foreseeability, in particular, was wrong and, fourthly, that the damages were excessive.

Before us Mr Morrison, in a helpful argument, refined the grounds of appeal somewhat so that they were reduced to these elements.

It is submitted that the reasons were inadequate and in particular that the judge did not sufficiently indicate the grounds upon which he preferred the evidence of some witnesses to the evidence of others or indeed, why he selected, as he did, among the testimony of individual witnesses. In particular, it is contended that

since the plaintiff's credit was of critical importance upon the issues of foreseeability and damages, and since the learned judge made no explicit finding upon it, his conclusions upon both issues are necessarily flawed.

The evidence disclosed a very considerable conflict. The plaintiff's case was that she was not on her horse, but on her feet when she heard the noise and spun around. She gave evidence that after the accident she was assisted onto her horse, which had no bridle on it until one was obtained after the accident, and rode the horse to the administration block to report the incident and the damage done to the fence.

The defendant, his wife and daughter contest all of these points. The plaintiff, they say, walked her horse and displayed no sign of any injury or difficulty of gait. There were two gardeners who came on the scene. Their evidence supports both the parties in various degrees.

In this state of the evidence the appellant submits the learned judge should have made an analysis which would clearly and in some detail, as I understand the argument, have indicated the conclusions to which he came.

I may say at once that what the learned judge said seems to me to be entirely adequate. He commences by reciting the evidence in a reasonable degree of detail, emphasising the conflicts which it disclosed between the plaintiff's version and the defendant's. He mentioned the evidence of Mr Sheddon, a friend of the plaintiff, which, in my view, entirely supports the plaintiff and is contrary to the evidence given, for example, by a Mr Gavljak, upon which some reliance was placed by the appellant.

Then the judge deals with the evidence of Mr Weeks and, by inference, Mr Amos, the gardeners. He points out that they lend some support to the plaintiff's account, but disclose many points of contradiction. Judge McGuire thought that all the witnesses appeared reliable, but that clearly some of their recollections were faulty. He said that on balance he was satisfied that the plaintiff injured herself as she asserted and he said expressly that he accepted her as reliable as to the essential facts, though inaccurate on some matters and he believed her account of the sudden turning and the twisting of her knee. He explained clearly, by implication, why he preferred the plaintiff to the defendant because, it seems to me, he was saying that the defendant, his wife and daughter were concerned for their own safety or the consequences of the damage the defendant had wrought and that those concerns conspired to cloud their recollection of what the plaintiff was doing after the accident had occurred.

The appellant relies upon the principles of law discussed by this Court in Pettitt v Dunkley [1971] 2 NSWLR 376 and by the High Court in Public Service Board of New South Wales v Osmond (1985-86) 159 CLR 656. Reference was also made to Housing Commission of New South Wales v Tatmar [1983] 3 NSWLR 378. Pettitt proceeded largely upon the footing that the duty to give reasons arises because of the necessity for judges to find those facts and expose that reasoning necessary to enable an unsuccessful party to run an appeal. That principle has been observed and applied in later cases in this Court.

In Tatmar at 381 Hutley JA analysed the judgments in Pettitt and pointed out that it is impossible to define precisely the extent to which a court must go in giving reasons. He said: "A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals."

In the same case Mahoney JA spoke of the duties to give reasons as a necessary part, in effect, of the judicial process and as not necessarily limited to cases where there is an appeal.

In Osmond Gibbs CJ at 666-667 said: "It has long been the traditional practice of judges to express the reasons for their conclusions by finding the facts and expounding the law......" and he refers to authorities:

"And there have been many cases in which it has been held that it is the duty of the judge or magistrate to state his reasons. This does not mean that a judicial officer must give his reasons in every case. It is clear that there is no inflexible rule of universal application that reasons should be given for judicial decisions."

In my opinion, I would respectfully agree with Mahoney JA, that the giving of reasons is an incident of the judicial process, apart altogether from the requirement that those reasons should be given which are necessary to provide a technical basis for an appeal. They are an indication that the judge has considered the material and the arguments of the parties. It is ane aspect of the requirement for procedural fairness, but it is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.

In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue. Trial judges must always endeavour to balance their duty to explain with their duty to be brief.

In the present case it may be that his Honour could have embroidered his reasons further, but from what he says and from inferences which very plainly arise, his course of reasoning towards the decision on foreseeability is clearly revealed. I do not consider therefore that the challenge to the judgment on the first point can be sustained.

I should perhaps add that Mr Morrison relied also upon NRMA Insurance Ltd v Tatt an unreported decision of this Court given on 10 February 1989, and in particular upon my judgment in that case. That was a very special case and I do not think that the reasons which led the Court to its conclusions there are readily exportable to other factual situations.

The argument which I have just considered was the principal one and Mr Morrison very frankly conceded that if he failed on that he was not likely to succeed in a general attack upon the findings of fact. With this I agree. It was a decision wisely and nobly made and I think I may content myself by saying that, subject to one thing, the findings are not open to challenge.

The matter which must be separately considered and which, of course, is relevant both to the question of liability and the issue of damages is that which relates to the plaintiff's credit. Mr Morrison pointed out, and in this he is plainly right, that the whole of her case depended very largely upon the acceptance of what she said, not only about the accident, but about the consequences of the injury of which she complains. In particular, we were taken to the evidence about playing squash, which she had given before Judge Foord and which she later amended when she gave evidence before Judge McGuire. I should point out that it is apparent that she raised the matter herself, that is to say, the evidence is that when she read the transcript of her evidence before Judge Foord she realised that

what she had said on this topic was inaccurate and brought the matter to the attention of her counsel who corrected it on the next occasion.

I confess that I see nothing suspicious about this, but Mr Morrison's point was not so much that her credit was greatly impaired, but that the judge should have dealt explicitly with the issue. He did not, it is true, do so, but it is a clear inference from what he did say that he accepted the plaintiff as a witness of truth. He does not refer to the squash incident, if I may call it that, but there is no principle of law which requires the judge to refer to all the evidence or to deal with every conflict which it may present. I consider, therefore, that there was adequate treatment of the plaintiffs credibility. Certainly, there is no failure to deal with it such as to involve the necessity for this Court's intervention.

There remains only then the question of the quantum of damages, but there Mr Morrison again conceded rightly, if I may say so, that absent any finding in his favour on the prior point he could not successfully impugn the amount of the assessment. I should add that it was made clear in argument that the opinion of Dr Harrison, the doctor upon whom the learned judge evidently relied, was not by any evidence in the case made to depend upon the question whether or not the plaintiff had played three or so competition squash matches between the injury and the date of the trial.

For those reasons I think that the challenge to the judgment fails and that the appeal should be dismissed with costs.

Gleeson CJ I agree with the judgment of Samuels JA.

Priestley JA Two ways of stating the test by which this Court decides whether it will interfere with a trial judge's findings of fact, in circumstances where the trial judge had advantages over this Court in the assessment of the credibility of witnesses, are (1) whether the weight of the other evidence in the case shows the trial judge formed a wrong impression in accepting the evidence of a particular witness and (2) whether other circumstances in the case warrant the Court in differing from the judge even on a question of fact turning on the credibility of a witness whom the Court has not seen.

The first way of stating the test is taken from what Lord Reid said in Benmax v Austin Motor Company Ltd (1955) App Cas 370 and the second from what was said by Asprey JA in Ravagnani v Hollywood Sands Pty Ltd [1972] 1 NSWLR 362. There is some discussion of the two tests in Harrison v Wilson, an unreported decision of this Court delivered on 18 October 1985.

For the reasons given by Samuels JA, I do not think the appellant here has succeeded in satisfying the test, whichever way it is stated, in regard either to the issue of liability or the amount of damages.

I agree also with what Samuels JA has said about the Pettitt v Dunkley submission put on behalf of the appellant.

In my opinion, the appeal should be dismissed with costs.

The order of the Court is that the appeal be dismissed with costs. (Counsel addressed on the question of costs.)

Assuming, as we do, on the basis of what we have been told by counsel that the facts of the case fall within s6A 1(c) of the Suitors Fund Act we order that the appellant should have a certificate under that Act in respect of the costs of the hearing before his Honour Judge Foord. Otherwise the order will be that the appeal is dismissed with costs.

Counsel for the Appellant: AS MORRISON and BC MCMANAMEY

Solicitor for the Appellant: PG McGAHEN Counsel for the Respondent: K HORLER QC and NG MURRELL Solicitor for the Respondent: LEE and GIVNEY